The Founding Fathers v. the People: Paradoxes of American Democracy 9780674062597

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The Founding Fathers v. the People

The Founding Fathers v. the People PARADOXES OF AMERICAN DEMOCRACY

A n t h o n y Kin g

harvard university press

Cambridge, Massachusetts London, England 2012

Copyright © 2012 by the President and Fellows of Harvard College all rights reserved printed in the united states of america Library of Congress Cataloging- in-Publication Data King, Anthony Stephen. The founding fathers v. the people : paradoxes of American democracy / Anthony King. p. cm. Includes bibliographical references and index. ISBN 978- 0- 674- 04573- 6 (alk. paper) 1. United States—Politics and government. 2. United States—Politics and government—Philosophy. 3. Democracy—United States. 4. Separation of powers—United States. 5. Constitutional history—United States. I. Title. II. Title: Founding fathers versus the people. JK31.K56 2011 320.973—dc22 2011012318

Dedicated to the memory of my first mentors in the field of American politics and government, all four of them much missed: Richard E. Neustadt Nelson W. Polsby Austin Ranney Donald E. Stokes

Contents

Preface 1. An Assortment of Puzzles

ix 1

2. Who—and What—Were “the People”?

16

3. The People in the House of Power

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4. The Exaltation of the People

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5. The People Move Upstairs

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6. Two Tectonic Plates, Two Nostalgias

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7. An Assortment of Solutions

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8. Democracy in America

177

Notes Bibliography Index

209 229 237

Preface

This book is an extended essay. What I have tried to do in the pages that follow is to approach well-known facts from new angles and, on occasion, to draw attention to facts that should be well known but apparently are not. Putting the same point another way, I have set out to provoke the reader into puzzling over some of the things that he or she has always taken for granted or, quite possibly, has not gotten around to thinking about at all. To the extent that the book is original, its originality lies in the way it assembles and reassembles existing research findings and ideas. My intention is to construct, so to speak, a new mosaic out of tiles that other people have already colored and baked. The present book is also not a work of history. It draws heavily on the writings of historians and the legacies of the past, but it is not a book about the past for its own sake. It is about the present— about some aspects of the way in which the American political system functions today. I draw on the past only for the purpose of illuminating features of the present that might otherwise be unintelligible. The stories that this book tells about the past are not

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meant to be novel, controversial or especially erudite. They are intended, rather, to help us make sense, not of past centuries but of the first decades of our own. As a Canadian long resident in the United Kingdom, I write with some trepidation about the United States. The U.S. is undoubtedly home to the world’s largest body of able and industrious political scientists and historians. Together they have examined both America’s past and the workings of its present-day political system with assiduity and imagination. This book is based almost entirely on their books, articles and lectures. Some of them may think that, in my foreigner’s ignorance, I have made errors of both fact and interpretation. They may be right. I would only plead that the foreigner may notice important features of a society—any society—that the native overlooks. Also, even though the United States is undoubtedly one of the most successful and attractive societies in human history, Americans are often extraordinarily sensitive to what they interpret as criticism from outsiders. They are apt to construe questions and observations as criticisms even when they are not intended as such. This book is not at all critical in intent. It is merely intended to provoke Americans into thinking about aspects of their political system that they themselves might wish to criticize if they did pause and think about them. In Democracy in America, Alexis de Tocqueville refers in passing to “this irritable patriotism of the Americans.” I hope no American patriot is irritated by this book. My debts are many. Among the writers whose work deals with the historical events discussed in Chapters 2–5, my principal debts are to James Madison for his extraordinarily rich (and occasionally very funny) Notes of Debates in the Federal Convention of 1787, Alexis de Tocqueville (of course), Gordon S. Wood, Edmund S. Morgan, James A. Morone, Alexander Keyssar, Thomas Goebel and, on many counts, the late Richard Hofstadter. Among contemporary political scientists, I owe very substantial debts—in addition to those paid, alas posthumously, in the dedication—to Bruce Ackerman, Robert A. Dahl, Thomas E. Cronin, David E.

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Kyvig, John R. Hibbing and his colleague Elizabeth Theiss-Morse. Because this book is an essay, not a scholarly monograph, I have resisted the temptation to festoon it with innumerable reference numbers and for the most part have referenced only direct quotations. Because, however, I have not always quoted directly those whose work I have made extensive use of, I provide a bibliography which, I hope, fills in some of the gaps left by the detailed references in the endnotes. Two points of usage are worth mentioning. Although I realize, of course, that the founding fathers of the United States and the framers of the 1787 Constitution were not the same people (Jefferson, for one, was absent from the 1787 constitutional convention), the two groups did nevertheless overlap, and I fear I have used the terms “founding fathers” and “framers” indiscriminately, as indeed many Americans do. I often use “founding fathers” loosely—and not entirely accurately—to refer to the delegates to the Philadelphia convention, but my real meaning should always be clear in context. One trouble with “framers” is that it connotes picture framers, builders of window and door frames and those engaged in a certain sort of criminal activity. My other point of usage concerns gender. As a proto-feminist, I would prefer to have used gender-neutral language throughout these pages, but, sadly, doing that would have done violence to the English language and also resulted in unbelievably convoluted sentences and syntax. It would also have done violence to the truth since until very recent times men have totally dominated American political life. I hope therefore that readers will forgive “he” when, strictly, the rendering should be “he and she.” I have tried to introduce “she” and “her” whenever I decently (and grammatically) could. I very much look forward to the day when the people of the United States follow the examples of the United Kingdom, Germany and many other liberal democracies in choosing a woman to be their head of government. I listed many of my debts above. But my most personal debts are to my wife, Jan, to the two anonymous referees who read the

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manuscript of the book for Harvard University Press and to the six long-suffering American friends of mine who were kind enough to read the whole manuscript on my behalf: Seth Dubin, Jennifer Hochschild, Gary Jacobson, Chuck Jones, Tom Mann and David Mayhew. They made countless detailed and useful comments, almost all of which I have taken on board. I am enormously grateful to all of them and, partly for that reason, grant them at once the usual absolution. The book’s faults are not their fault, but its virtues owe much to their efforts. I am also grateful to my erstwhile colleague, Albert Weale, for reading and commenting on Chapter 6, the most theoretical of my eight chapters and therefore a chapter badly in need of his attention. But, in terms of their sheer time and effort, I owe the most to my two research assistants on the project: Nicholas Allen, formerly a graduate student at the University of Essex and now a teacher of political science at Royal Holloway, University of London, and Cécile Perles, who at the time of writing is still (but who, at her present rapid rate of progress, will probably not be much longer) a graduate student at Essex. They brought to the project commitment and energy but also, in the largest possible measure, intelligence and imagination. Without them (or their clones), this book might well have been started but would certainly not have been finished—or, in the improbable event that it had been finished, would have been altogether poorer. I salute them both.

The Founding Fathers v. the People

1 An Assortment of Puzzles

People who live in any country, but especially people who live in

a great country like the United States, are apt to take the institutions, customs and practices of their own country for granted. Everything seems appropriate, natural, even preordained. Disturbances to the status quo may cause anxiety, but the status quo itself is liable to go unquestioned. Whatever is simply is, especially if it has been around for a long time. Even those who object to specific aspects of the arrangements that currently exist in their country typically do so within an intellectual framework that regards the bulk of these same arrangements as being fi xed, as forming part of some natural order. The point is not that they applaud or deplore the given arrangements but that they simply assume them. Often the most interesting parts of any nation’s culture and institutions are those parts that the natives themselves are scarcely aware of. Visitors from other countries, however, scratch their heads and wonder why the natives dress as they do, greet each other as they do, eat the foods that they do and drive on the left side of the road

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rather than the right. It is no accident that often the most perceptive accounts of many countries’ cultures have been written by foreigners, sometimes by anthropologists, sometimes by journalists, sometimes simply by travelers with an eye for the exotic. The same is true of a country’s politics and political institutions. Over a century and a half after it was written, Alexis de Tocqueville’s Democracy in America can still be read with pleasure and profit. Even now, the reader can still sense the wonder that Tocqueville felt at the strangeness of almost everything he saw. The purpose of this chapter is to invite American readers of this book to regard aspects of the political system that they take for granted as being really quite strange and as raising questions that they may well find intriguing and hard to answer. Putting the same point another way, the purpose of this chapter is to try to render the familiar unfamiliar and to provoke readers into asking questions about matters that they have probably never thought about before. This chapter accordingly offers an assortment of puzzles. All of them concern matters that seem not to puzzle most Americans, including most politically aware Americans, but that foreigners sometimes find very curious. The argument of the book as a whole is that many of the puzzling features of the American system bear a striking resemblance to the distortions of the earth’s surface that inevitably occur when two tectonic plates rub up against each other. Present in the American system is, so to speak, a geological fault—though whether the “fault” in question is actually faulty, in the normal sense of that word, raises other questions, ones that will be addressed in the final chapter. Most political systems, certainly the political systems of most liberal democracies, are based on a limited number of political principles—principles that are usually broadly compatible with each other. The argument of this book is that the political system of the United States is now, and has been for many decades, based on two antithetical principles—principles that not only differ from each other but actually come into conflict with each other at almost every point. The principles in question are, on the one hand,

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the founding fathers’ conception of “constitutional” government, of a system of government characterized by a separation of powers and containing provisions for a wide variety of checks and balances, and, on the other hand, what we shall call in a later chapter “radical democracy,” the idea that in a true democracy the people and only the people should rule and that their preferences and their preferences alone should under all circumstances be decisive. In other words, at the heart of the American system lie profound tensions and a profound doctrinal ambiguity. But we begin with our assortment of puzzles. There are quite a few of them. None is trivial. They can be listed in no particular order. Take, for starters, one of the most curious features of the American system: the gross restrictions placed on the sorts of people eligible to become president of the United States. In almost every democratic country, every citizen of that country, whatever his or her provenance, can legally become head of the government of that country, and the age at which an individual can become head of the government is roughly assimilated to the age at which he or she first becomes eligible to vote. For example, in most of the countries of Western Europe, the age at which a person becomes eligible for membership of the lower house of the national legislature—and therefore in a parliamentary system becomes eligible to become prime minister—is either identical to the age at which he or she becomes eligible to vote or is only a few years older. The same is true of other long-established democracies such as Canada, Australia, Iceland and New Zealand. The United Kingdom is typical. The voting age is 18. So is the age at which someone can be elected to the House of Commons and is therefore legally eligible to become prime minister. In 1783 the younger William Pitt famously, if unusually, became prime minister at the precocious age of 24. Where a legal gap between the voting age and the age of eligibility for the highest office does exist in a country, it is usually quite narrow: for instance, three years in Australia, Belgium, Ireland and Luxembourg and only two in Austria.

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The contrast between the bulk of the democratic world and the United States could hardly be starker. The twenty-sixth amendment to the U.S. Constitution, ratified in 1971, states that the “right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Article II of the U.S. Constitution, unamended since the late eighteenth century, however, places three restrictions on citizens’ eligibility to be elected to the presidency. First, the president must be “a natural born citizen.” That is, no naturalized citizen, however long he or she has been a U.S. citizen, is eligible to become president. Second, no person shall be “eligible to that office who shall not have attained the Age of thirty five years.” That is, no one between the ages of 18 and 34 can be elected. Third, anyone elected to the presidency must have “been fourteen Years a Resident within the United States.” Obviously, at least two of these provisions are open to interpretation. What is “a natural born citizen”? Is someone born to U.S. citizens on an overseas American military base to be accounted a “natural born” citizen? Similarly, must someone’s fourteen years of residency “within the United States” have been consecutive years? And do childhood years count for this purpose? But, leaving such details of interpretation aside, the central truth is that a substantial proportion of the American population, who would be eligible to hold the highest elective office in any of the world’s other democratic countries, are comprehensively denied that right in the U.S. Even if they are American citizens, they are disqualified from running, and no one can vote for them. By any reasonable standard, the number of people thus excluded from the highest office in the United States is prodigiously large. Early in the twenty-first century, the U.S. population approaches 300 million. Of those 300 million, approximately 200 million are citizens of the United States who are aged 18 or older and are therefore, with some exceptions, entitled to vote. However, by no means are all of those 200 million entitled to become president. On the contrary, at present only about 135 million Americans are, in addi-

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tion to being U.S. citizens entitled to vote, also natural-born citizens (i.e., not naturalized citizens) and aged 35 or older. That means that only about two-thirds of voting-age American citizens are currently eligible to be president. Roughly one-third of votingage citizens—altogether some 65 million individuals—are ineligible. This huge discrepancy is far greater than in any other democratic country. The right to vote is granted to most adult Americans, but the right to vote for whomever they like is simultaneously denied them. Few Americans seem even to notice, let alone object. There is, moreover, a further restriction on American citizens’ liberty to vote for whomever they want. If they had wanted to run for a third or fourth term—and had been permitted to do so—one or more of George Washington, Thomas Jefferson, James Madison, Andrew Jackson, Abraham Lincoln and Ulysses S. Grant might well have succeeded in being reelected a second or a third time. Franklin D. Roosevelt actually was reelected three times. However, the twenty-second amendment to the U.S. Constitution, ratified in 1951, provides that No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.

Had that amendment already been in force, it would have precluded Washington, Jefferson and the others from running for reelection more than once and would thereby have precluded American voters from voting for them more than once. However much American voters might have wanted to, they could therefore not have reelected Dwight D. Eisenhower in 1960, Ronald Reagan in 1988, Bill Clinton in 2000 or George W. Bush in 2008. No U.S. president is thus permitted to serve for more than eight years, even after a period out of office. And, again, the contrast with most of the rest of the democratic world could hardly be starker. Outside the Western Hemisphere and some of the ex- Communist

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countries of Eastern Europe, legally imposed term limits of the American sort are exceedingly rare (France having imposed a two-term limit on its president only in 2008). Voters in most democratic countries are free to vote for whomever they want and as often as they want. During the decades following World War II, Margaret Thatcher served as British prime minister for eleven years and Tony Blair for ten, Charles de Gaulle served as French president for ten years, and Konrad Adenauer served as West German chancellor for fourteen—and the list of long-serving and frequently serving European, Canadian, Australian and New Zealand prime ministers, executive presidents and chancellors extends well beyond those four. Voters in those countries have the privilege of returning their heads of government to office as often as they choose, a privilege denied to their U.S. counterparts. American voters are free to vote but by international standards are peculiarly unfree in whom they can vote for. None of all of this is to say that these provisions of the U.S. Constitution are wrong. A case, quite a strong one, can be made out for term limits. A case, also quite strong, can be made out that would-be heads of government should be required to have reached some minimum age before attaining the highest office. A case, although not such a strong one, can be made out for the proposition that a country’s head of government should be a natural-born citizen of that country. The point being made here is, rather, that these particular provisions are peculiarly American and that it does seem strange on the face of it that in a democratic country the range of choices available to voters should be circumscribed in this way. It does seem puzzling, at least to a foreigner. Someone may, of course, protest that the restrictions just described are embodied in the U.S. Constitution and that the U.S. Constitution is exceedingly difficult to amend—more difficult to amend than the constitutions of many other countries. That is true, of course. But that line of argument overlooks a number of important points. One is that the U.S. Constitution, although exceedingly difficult to amend, is nevertheless amended from time

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to time; two such amendments have already been mentioned. Another is that the Constitution, as amended, seems to pull in opposite directions; the twenty-sixth amendment extends the right to vote to a greater number of citizens while the twenty-second amendment restricts their right to vote for the same individual on more than two occasions, at least for the presidency. Something odd is going on here. Even odder is the fact that the United States, the world’s original and premier democracy, continues to accept as part of its Constitution provisions as restrictive of democratic freedoms as those contained in Article II pertaining to the qualifications for election to the presidency. One can almost hear the two tectonic plates grinding and creaking against each other. Another puzzle, at least to a foreigner, concerns referendums. Referendums are a central feature of American political life; there can be few politically sentient Americans who have not participated in a referendum on one occasion or another. Every state in the United States except Delaware holds a referendum from time to time, and some states hold them practically all the time. In a typical recent year, 2006, Arizona held referendums relating to nineteen separate issues, California ten, Colorado fourteen, South Dakota eleven, Nevada ten, Oregon ten, Rhode Island nine, Georgia nine, Louisiana eight and another twenty-eight random scatterings of others. In a number of states, mainly in the West, government by referendum is almost the norm. Needless to say, many of these referendums are held on relatively trivial issues; in 2006 the people of Arizona determined that pregnant pigs should be allotted a minimum amount of living space, and in the same year the people of Michigan declined to repeal a law prohibiting the hunting of mourning doves. But a large proportion of them are held on issues that, on almost any reckoning, are far from trivial. The issues that have been put to popular referendums in American states include taxes and borrowing, the spending of public money, utility and business regulation, environmental regulation, education, legalized gambling, welfare and labor laws, judicial reform and, not least, the use of the death penalty.

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Every state except Delaware requires proposed amendments to the state constitution to be put to the people in a referendum. Furthermore, referendums are held from time to time in a large proportion of other liberal democracies. Canada and the United Kingdom have each held only one national referendum, but since World War II Italy has held at least sixty-three, Australia twentyfive, France fourteen, Poland twelve and Spain five. As in the United States, many of these referendums have empowered the people to decide issues of the utmost importance. In Britain, the people voted in 1975 to decide whether or not the United Kingdom should remain a member of the European Economic Community (now the European Union). In post-communist Poland, the people voted on the terms of that country’s new constitution, on the scope of its privatization program and on whether or not Poland should join the European Union. In France, the people have settled a wide range of constitutional issues, the granting of independence to Algeria and the terms of France’s relationship with the rest of Europe. In Italy, the matters decided by its sixty-three postwar referendums have included everything from abolishing the Italian monarchy to prohibiting in vitro fertilization. Australians once voted on whether their national song should, or should not, be “Advance Australia Fair.” But—and here is the puzzle—no nationwide referendum has ever been held in the United States. Why not? It is no use simply saying, although it is true, that referendums are not provided for by the federal Constitution. In the first place, the federal Constitution is open to amendment. In the second place, and more to the point, although the Constitution does not provide for the holding of referendums, it certainly does not provide for not holding them; unlike Germany’s Basic Law, it does not preclude them. It would be perfectly possible for the U.S. Congress to organize the holding of a non-binding nationwide referendum on any issue of its choosing, just as the British Parliament voted in 1975 to hold a non-binding referendum on Britain’s membership of the European Community. In the U.S. something seems to be missing. What is it?

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Those are two of our puzzles. But consider another: abortion. In most of the world’s great democracies, decisions about whether or not the abortion of unborn fetuses should be allowed, and if so under what circumstances, are taken either by the people or by their elected representatives, usually, in practice, by the latter. In France, Italy, Spain, the United Kingdom and other European countries, laws relating to abortion are determined exclusively by the national legislature. In countries such as Ireland, Italy and Portugal, the people via referendums have had a say in the matter, sometimes a determinative say. In Australia, abortion law is largely a matter for the legislatures of the individual states. But in the United States—almost uniquely—unelected and unaccountable judges play a crucial role in determining abortion policy. In a considerable number of states, popular referendums have been held on the issue, and in every state the law on abortion is, at least to begin with, a matter for either the people or the state legislature. But it is a matter for the people or the state legislature only to begin with. The most important decisions—the ones that determine the limits within which the individual states can maneuver— are taken by the U.S. Supreme Court, that is, by a panel of nine unelected judges. These decisions are embodied in the court’s rulings in such cases as Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Whatever the people say, or do not say, the Supreme Court decides. Only in Canada, Germany and Poland, among the larger democracies, do unelected judges play anything like such a critical role. Another puzzle might be deemed even more important—and at the same time even more puzzling. It might be thought that in a democracy the voters and only the voters should decide who is to represent them and who should hold elective office. Serious disputes about who has actually won this or that electoral contest are relatively rare in liberal democracies—election outcomes are usually clear-cut—but disputes do occasionally occur and, when they do, the rule in most countries is that, if there is serious doubt about who has won a given election, either the whole election is re-run or

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else the ballots are counted again by an impartial body, a body that may well not be the same one that counted them, and may have miscounted them, in the first place. In other words, the general rule is that the voters, and only they, should ultimately decide. But that principle is less rigorously applied in the United States. In 2000, as is well known, there was a serious dispute about who— George W. Bush or Al Gore—had won the presidential election of that year. The dispute turned on the result of the election in a single state, Florida. Republicans claimed that their man, Bush, had won fairly and squarely. Democrats claimed that, on the contrary, Gore would have been declared the winner but for a comedy of errors (or possibly a tragedy of errors) arising out of a flawed system of electoral registration, faulty voting machines, incomprehensible ballots, willful miscounting of ballots and a regime of electoral administration rendered suspect by the fact that it was in the hands of a state official who was an avowed Republican, had been elected to office on a Republican ticket and had actually been co-chair of George W. Bush’s Florida campaign committee. There was clearly a legitimate dispute concerning the facts of the case. Both sides could muster arguments that reasonable men and women could reasonably disagree about. Be that as it may, the case wended its way upward from the Florida state courts to the U.S. Supreme Court, which finally came to a decision in December 2000. But what is striking to a viewer beyond America’s shores is not the fact that the Supreme Court reached a decision but the nature of the decision it reached. It did not decide that there was a legitimate dispute, that the true result of the election was both unknown and probably unknowable and that therefore the Florida election should be run again, possibly to a higher standard. Instead, the court took it upon itself to determine who had won— not only in Florida but therefore, by extension, in the United States as a whole. The outcome of the 2000 U.S. presidential election was thus decided, not by the voters of Florida but by the unelected members of a court. Given that the U.S. is a democracy, that outcome seems strange, to say the least of it. Here we have another

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puzzle (made even more puzzling by the fact that a majority of Americans at the time appear to have regarded the outcome as being, if not positively desirable, then at least legitimate, a natural and unavoidable consequence of their country’s way of doing things). Yet another feature of the American system that puzzles an outsider, and that perhaps ought to puzzle Americans, is also related to the holding of elections. This puzzle takes the form of the coexistence in the U.S. of two quite different kinds of institutions: on the one hand, the electoral college, established by the 1787 Constitution, and, on the other, direct primary elections, adopted by most states during the last century. The electoral college institutionalizes a form of indirect democracy—of democracy, so to speak, at one remove. The voters vote for the competing presidential candidates, but their votes are not tallied nationally as they are, for example, in elections for the presidency of France. Instead, they are counted state by state, with the candidate winning most votes in each state (with two minor exceptions) being awarded all of that state’s electoral college votes. Usually the candidate winning a plurality of the popular vote also wins a majority of the electoral college’s vote—but not always. Bodies similar to the American electoral college do exist in some other countries, but only for the purpose of choosing heads of government who are not executive presidents and perform functions largely ceremonial in character. The continued existence of the electoral college—a device that ensures that the voters usually decide, but not quite and not always— might be thought strange in itself, but what makes it doubly strange is the fact that it continues to exist alongside direct primaries. One institution, the electoral college, was intended to create (and still occasionally does create) an arm’s-length relationship between the voters and the people they are voting for, while the other, direct primaries, clearly creates a hands-on relationship between the two, with the choice of candidates for public office, including the presidency, placed largely or wholly in the hands of the people. On the face of it, one institution seems distinctly more democratic than the other.

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The U.S. is actually unique among the world’s major democracies not only in having an electoral college but in holding primaries. Only Bolivia, Colombia, Costa Rica and Uruguay resemble the U.S. in holding proper American-style primaries. Elections that are called “primaries” are sometimes held in other countries, but they are not really primaries in the full American sense of the term. True U.S.-style primaries have two characteristics. The first is that they are organized by the governments of the states that hold them: primary elections in the U.S. are not organized by the competing political parties themselves—in-house, so to speak—but are instead real elections, officially organized. Second, U.S.-style primaries are not confined, as in other countries, to those who formally belong to, and usually pay a subscription to, the party whose candidates are being chosen; all registered electors are eligible to participate. By now, primary elections in the U.S. are all but ubiquitous. They are woven deep into the fabric of American political life. The great majority of states hold congressional, gubernatorial and other state primaries as a matter of routine, and some three dozen of them, plus the District of Columbia and Puerto Rico, also hold presidential primaries. In some states, primaries are “closed,” but they are not very closed; all the would-be voter has to do is to publicly declare his or her allegiance to a party. In other states, primaries are “open,” and in those cases they really are wide open; all the would-be voter has to do is choose to cast one party’s ballot rather than another’s. In Louisiana, that state’s primary is not really a primary at all, as all the parties’ candidates are competing against each other in the same election; Louisiana’s primary is really only the first round in a two-round general election of the kind that takes place in France. But, whatever their precise form, all primary elections in the U.S. bring a core function of political parties—the choice of candidates—closer to the mass of ordinary voters than is probably the case in any other jurisdiction in the world. They therefore sit oddly with the institution of the electoral college, which drives something of a wedge between the voters and those they are

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voting for. It is surprising to find both institutions functioning simultaneously in the same country. The two tectonic plates can once again be heard grinding against one another. Even more surprising are the arrangements widely adopted in the U.S. for the election of judges. The United States is the only one of the world’s major democracies in which many of those who sit on the judicial bench are routinely elected by the people. Everywhere else judges are appointed by senior government officials, often with the involvement of independent commissions of one sort or another, and judges elsewhere typically hold office “during good behavior,” either for life or until some statutorily predetermined retirement age. Judges have security of tenure, and in most jurisdictions their promotion up the judicial hierarchy is strictly on merit. Only in Italy, among the world’s major democracies, have there been overt attempts in recent years to undermine judicial independence. In the United States the position is radically different. In some three dozen of the fifty states, all or many of the state’s judges are either initially elected by the people of that state or else have to be confirmed in office by the people of that state. Sometimes the actual elections are overtly partisan, sometimes not. Ohio is an extreme case. In Ohio, not only are popular elections to the state judiciary fought on a partisan basis, but judicial candidates are chosen in partisan direct primaries. In some states, once judges have been confirmed in office by the people, they enjoy security of tenure for a considerable period of years. However, in a substantial majority— more than three dozen at the time of writing—all or many judges who wish to continue to serve on the judicial bench must run for reelection more or less in the manner of other elective officeholders. In only a small minority of the states of the union are all of those appointed to the judicial bench absolved from any need to come into direct contact with their state’s voters. Those states currently include Connecticut, Delaware, Hawaii, Maine, Massachusetts, New Hampshire, New Jersey, Rhode Island, South Carolina, Vermont and Virginia. As it happens, all of those states, with the

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single exception of Hawaii, are on or very near the eastern seaboard. All of them except Hawaii and Maine, which did not then exist as states, ratified the 1787 Constitution very early on. An outside observer finds the election of judges puzzling on two separate counts, in addition to the bald fact that provisions in the U.S. for the popular election of judges have no parallels overseas. One of the two counts is that, although judges are subject to democratic election or confirmation in a large majority of individual American states, not a single U.S. federal judge is elected and none is subject to any form of democratic confirmation or accountability. Why not? As with our earlier puzzles, there is no point in merely citing the Constitution. In 1913, the seventeenth amendment to the Constitution provided for the direct election of members of the U.S. Senate. Why not amend the Constitution to provide for the direction election of federal judges? Moreover, even if the Constitution were not amended in this way, it would still be open to the Congress, if it so wished, to enact legislation providing for the direct election of federal judges, subject only to the provisos that the president would still have formally to nominate the judges who had been elected and that the Senate would still have to confirm them in office. Of course, Congress is most unlikely to pass any such legislation, let alone the president to sign it, but those two facts only serve to intensify the mystery. The second additional ground for puzzlement about judicial elections is more philosophical in character. On the face of it, the direct election of judges—and the need, where it exists, for them to have to seek reelection if they wish to remain in office—would seem to violate one of the core principles of the rule of law, namely, that judges in their capacity as judges should be wholly independent of the other branches of the government and of the people. They should not be open to pressure from either the executive or the legislature; and, one might have thought, they should not be open to pressure from the people. The U.S. Constitution embodies that principle. Article III establishes “the judicial Power of the United States” and states unequivocally that “The Judges, both of

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the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated times, receive for their services, a Compensation, which shall not be diminished during their Continuence in Office.” In other words, the judges shall be independent: they shall not be either forced out or starved out as a consequence of the judgments they have handed down. However, in the very large proportion of American states in which judges are eligible for reelection and are subject to it, potential pressures on them from outside—from the voters who elected them and may choose not to reelect them—are omnipresent. Here is another puzzle. The rest of this book seeks to solve puzzles such as these—and others that could have been mentioned—or at least to throw light on them. It does so by exploring in some detail our two discrepant tectonic plates and by going on to examine the relationships and the tensions between them. The treatment will be largely empirical. It will, on the whole, be non-judgmental. Only toward the end will we offer an assessment of what the abutment of these two plates means for the functioning and health of American democracy. In the meantime, we begin where the modern American political system itself began: in the old Pennsylvania State House in Philadelphia during the long hot summer of 1787.

2 Who—and What—Were “the People”?

The men who drafted the American Constitution in Philadel-

phia in 1787 chose to introduce it with the seven words “We the people of the United States.” We now take those seven words for granted, but they were, in their historical setting and at that time, among the most extraordinary ever written. When they were first committed to paper, no person in a position of authority on the far side of the Atlantic Ocean, let alone in Africa, Asia, the Ottoman Empire or Czarist Russia, had ever dreamed of basing his or her political authority on the will of the people—on a document that the people themselves had, in the words of the new Constitution, “ordained and established.” The American Revolution was over, but here was a truly revolutionary document. Those who wrote it—and a majority of those who read it—knew it to be such. But who were these mysterious folk, “the people”? And, apart from ordaining and establishing America’s new Constitution, what role were they to play in the operations of the newly established federal government? Answers to those questions are crucial to an understanding of American politics and government today,

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more than two centuries later. Historians, in their accounts of the 1787 constitutional convention, have tended to concentrate, quite naturally, on the same topics that exercised those who actually attended the convention: the powers to be acquired by the new national government, the relative political weights to be assigned to the large and small states, how Negro slaves were to be counted, if at all, for purposes of the decennial census, the regulation of interstate and foreign commerce, the currency, taxation and so forth. Intriguingly, however, historians have had far less to say—indeed nothing at all in most cases—about what the assembled delegates meant by “the people,” about what exactly they had in mind when they employed that particular abstract noun. Yet, for our purposes, an understanding of what those two extraordinary words meant to them is a matter of central concern, and this chapter is therefore devoted to trying to work out what exactly the words did mean to them. Far more than in the case of many other countries, the distant past of the American political system lives on in the present. The past of America echoes loudly in the present; and many of those echoes, if one cares to listen to them, sound strange to modern ears. To understand the American political system today, we need to understand more of what went on during the summer of 1787. Nowadays, in our era of universal suffrage, we in liberal democracies tend to think of “the people” as comprising everyone who is eligible to vote—and also of everyone who is eligible to vote as constituting the people. We tend to think of the electorate and the general body of citizens, the citizenry, as being roughly coterminous. But the majority of delegates to the 1787 federal convention did not think like that. Their understanding of the term “the people” was not ours. A careful reading of the notes that James Madison took of the convention’s proceedings suggests that most of those present that summer thought in terms of three quite distinct conceptual categories.1 One of those categories comprised the “electors,” the minority of people eligible to vote. The second category, far larger, comprised

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the totality of individual human beings living in the United States: real people, of both sexes, all ages, widely varying social statuses, differing amounts of wealth and a myriad occupations. The third category—the one commonly known as “the people”—did not refer either to the eligible electorate or to the entire American population. This third category was a far more elusive and abstract concept. It was, indeed, a concept, an intellectual tool, a summary phrase. It lacked specific empirical referents. One could talk eloquently—and seemingly meaningfully—about “the people” without referring either to the body of eligible electors or to the whole population. The attraction of the phrase lay largely in its vagueness. This triple helix of intertwined but distinct meanings is strange to us; but, if we are to understand what happened at the convention, we need to disentangle its three strands and lay them out separately. The delegates to the convention mostly kept this triad of meanings quite separate in their own minds. We need to do the same. Let us start with the electors. The convention delegates certainly did not assume that the electors and the people were the same thing, and most of the delegates did not believe that most individual people could become, or ever should become, electors. They took it for granted that women and children, although palpably human beings and therefore people, were not fit to vote. Their views differed sharply about whether or not Negro slaves were human beings (though, in order to avoid rancor and dissension at the convention, they took care not to debate this issue); but, whatever their views, most of them nevertheless took it for granted that chattel slaves, like women and children, should not, or were not in any position to, become electors. That left a potential electorate comprising free adult males, mostly white but with an admixture of black men who had either never been slaves or were no longer so. At the time of the convention, the individual states of the union determined who among this large body of free men should be allowed to vote, the proportions varying from roughly 80– 90 percent in Pennsylvania to less, in some cases considerably

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less, than 50 percent in parts of New England. Almost every state required electors to be property owners or taxpayers; a few explicitly excluded black people, and a small minority imposed religious qualifications of one sort or another. South Carolina, for example, initially required electors to “acknowledge the being of a God, and [to] believe in a future state of rewards and punishments.”2 Certainly, given these large-scale restrictions on the right to vote, no one could suppose that enfranchised electors constituted the totality of the people, and no one at the Philadelphia convention did so. If any or all of the delegates had seriously wished to define what they meant by the people—and precisely who, therefore, they were inviting to “ordain and establish” their proposed new constitution—they would presumably have wanted to define the people at least partly in terms of who was, and was not, legally entitled to vote. They would have wanted to establish some sort of explicit connection between the people on the one hand and the electorate on the other—or, alternatively, to have made it clear that they did not want to establish any such connection and that, instead, they wished to distinguish between the electors and the people. In fact, however, although the possibility of establishing a uniform federal franchise was raised and debated at the convention, the debate did not turn, except very obliquely, on the issue of who constituted “the people,” and none of the speakers raised the issue in remotely that form. Instead, the delegates debated who the electors (not the people) should be—and the related issue of who should make decisions about who the electors (not the people) should be. Some delegates favored a broad franchise, some a narrow one. Unable to agree on what form a uniform national franchise should take, and fearing that any change in the arrangements that already existed in the states would alienate those electors in the states who were charged with ratifying the proposed constitution, the delegates, after a heated but brief debate, agreed without objection to fudge the issue and to leave in the hands of the several states decisions about who should be able to vote, not

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just for the local state legislature but for the U.S. House of Representatives. 3 In other words, if enfranchised electors and only enfranchised electors were to be thought of as constituting “the people,” there were now to be as many different peoples as there were different states, given that each state would still determine its own voting qualifications. In reality, of course, the delegates did not think of only enfranchised electors as constituting the people. The people were something separate. Leaving aside the question of the franchise, what about the people as a much larger set of individual human beings? Who counted as being human as distinct from being something else, possibly subhuman? Here, too, the delegates to the convention made no attempt at a definition. They did not exclude females and infants, but nor for that matter did they include them. Nor did they exclude or include people of different skin color, religious persuasion, income or social status. Except for purposes of census enumeration, they did not even make it clear whether chattel slaves were, or were not, people. For purposes of census enumeration, it was agreed— very reluctantly on the part of some Northern delegates—that each slave should be accorded three-fifths of the weight of one free person. Negro slaves were thus, for these purposes, a sort of partial people—not exactly un-people but not whole, five-fifths people. Were they to be counted among “We the people” for purposes of the Constitution, or even for purposes of the Constitution’s rhetoric? No one chose to say. All the same, most of the delegates to the convention were perfectly capable of thinking demographically, in terms of the individuals, families and social groupings that made up contemporary America. Many of them did so, and their beliefs about the structure of late eighteenth-century American society undoubtedly colored their notions of what they themselves understood by the phrase “the people.” Unlike modern America, America at the time of the founding in the 1770s and 1780s was a predominantly rural society. Most Americans lived on the land or, alternatively, lived in the small towns and villages that provided those who did live on

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the land with basic goods and ser vices. The typical American, insofar as there was such a thing, was a farmer, a farm worker, an indentured servant, an innkeeper, a shopkeeper, a craftsman—or some combination of all of those. Either that, or she was the man’s wife or one of his (probably many) children. Cities of any size were notable for their thriving mercantile and cultural life but also for how few of them there were. Philadelphia in 1787 was the largest city in the United States, with a population of less than 40,000. New York came next with a population of some 30,000. Manufacturing industry did exist and was beginning to expand, but only gradually. There were, of course, economic and social divisions within that society—between landed proprietors (of whom there were some) and those who labored for them, between merchants and those whose produce they sold overseas, between manufacturers who sought protection from foreign imports and farmers who wished to import foreign goods freely, between creditors and debtors, between city dwellers and country folk and, potentially at least, between plantation owners and their chattel slaves—but the most striking thing about American society, and the delegates at Philadelphia all knew it, was the total absence of any fi xed gulf between aristocrats and commoners and between rich and poor. By European standards, American society was remarkably undifferentiated and flexible. Farmers mostly owned their own land, craftsmen their own tools. Anyone sufficiently dissatisfied with his piece of land, his trade or his way of life could at least hope to move on. Many thousands did so. Moreover, people’s attitudes and outlook reflected the reality of the lives that they lived. American manners were marked by a lack of servility and deference that astonished foreign visitors. Every man seemed to think he was as good as every other man. He demanded the same rights and believed that he was owed equal consideration. Compared with Europe, the notion that there were natural superiors and natural inferiors was at a discount. Many Americans discounted the notion entirely. At an early stage of the

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Philadelphia convention, Charles Pinckney of South Carolina spoke of the new nation as he experienced it. He was sufficiently proud of his speech that he passed on to Madison a copy of his text to transcribe: The people of the U. States are perhaps the most singular of any we are acquainted with. Among them there are fewer distinctions of fortune & less of rank than among the inhabitants of any other nation. Every freeman has the same right to protection & security; and a very moderate share of property entitles them to the possession of all the honors and privileges the public can bestow: hence arises a greater equality than is to be found among the people of any other country, and an equality which is . . . likely to continue. I say this equality is likely to continue because in a new Country, possessing immense tracts of uncultivated lands, where every temptation is offered to emigration & where industry must be rewarded with competency, there will be few poor and few dependent. Every member of the Society almost, will enjoy an equal power of arriving at the supreme offices & consequently of directing the strength & sentiments of the whole Community.4

No one rose to disagree with him. When most of the delegates thought of individual Americans, that was the sort of image that was conjured up in their minds. So much for people as individuals and as social beings. But what about “the people,” that undefi ned, unspecified corporate entity alluded to in the Constitution’s preamble? Who were they? Or, perhaps more precisely, what was it, given that in the founders’ minds it amounted to considerably more than a mere agglomeration of individuals? What was this mysterious, abstract entity upon which the Constitution’s legitimacy, and hence the legitimacy of America’s new political order, was to rest? It is probably fair to say that it had both exclusionary and inclusionary aspects.

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The exclusionary aspects are important, especially in the context of the late eighteenth century. The founders were quite clear about various elements that they did not want their concept of “the people” to embrace. The people was certainly not to include, let alone to consist of or be dependent upon, the Christian God or any other divine being. To this day, the coins of Great Britain bear an image of the Her Majesty the Queen surrounded by an inscription, in abbreviated Latin, of the words “By the Grace of God Queen, Defender of the Faith.” American banknotes are engraved with the words “In God We Trust.” But the founders did not intend the new United States to be any form of theocracy. On the contrary, divine right was not to be America’s legitimating principle. Few of the convention delegates were deeply religious men, some were no more than vague theists, and some, including George Washington, went to church mainly for form’s sake. When at one point the convention was especially distracted, Benjamin Franklin moved—on the basis, as he said, that “God Governs in the affairs of men”—that henceforth the convention’s proceedings each morning should be opened by prayer, but his motion found only limited support and was quietly allowed to lapse. 5 The Constitution, as drafted and ratified, makes no mention of God. Indeed, to this day, Article II, Section 1 of the Constitution explicitly permits newly elected presidents to affirm that they will faithfully execute the office of president rather than having to swear that they will. Equally clearly, the people was not to consist of or be dependent upon an individual monarch, a monarchy or a royal dynasty. The British monarch, George III, had been regarded as a despot and had infringed America’s rights, and few Americans (most Tory loyalists having either fled or fallen silent) proposed that he be replaced by anyone or anything like him. Monarchy was associated with tyranny, and the nation’s sentiments were overwhelmingly antimonarchical. So were the convention’s. Franklin, speaking on this occasion for the great majority, offered the thought that “there is scarce a king in a hundred who would not, if he could, follow the

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Pharaoh, get first all the people’s money, then all their lands, and then make them and their children servants for ever.”6 Only Alexander Hamilton spoke in favor of an executive branch that would be composed of an elected monarch, someone who would not inherit the post or pass it on to his eldest son but would nevertheless remain in office for life.7 But Hamilton’s suggestion attracted nil support, and the fact that he even bothered to make it undoubtedly damaged his political reputation. Not least, the people was not envisaged as constituting an aristocracy, whether hereditary or otherwise. Many of the delegates believed that in every human society there was bound to be an aristocracy of some kind—an aristocracy founded on talent, wealth, family connections or sheer good fortune—but few or none of the delegates wished to see established in America an aristocracy that would persist for generation after generation or that might become a self-perpetuating governing elite. Few or none of them believed in, so to speak, a standing aristocracy. If there had to be one, it should be strictly non-hereditary and open to all the talents—a wholly natural aristocracy. Some delegates associated in their minds the concept of aristocracy with any form of government that was dominated by a small oligarchy or clique. For instance, when Edmund Randolph of Virginia opposed a suggestion that the new U.S. president might be elected by the Senate, “he dwelt on the tendency of such an influence in the Senate over the election of the President, in addition to its other powers, to convert that body into a real & dangerous Aristocracy.”8 Politicians usually debate seriously only matters about which they disagree, and at Philadelphia the provision that “No Title of Nobility shall be granted by the United States” was not discussed at all, let alone seriously debated. It was simply passed without objection. But the abstract concept of “the people” served another, more specific purpose. There was something else that the people was not. It was not the legislatures of the several states. A majority of the delegates to the convention were determined that the legitimacy of the new Constitution should be based firmly on a founda-

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tion that did not comprise, or even include, the state legislatures, even if the state legislatures in the late eighteenth century were the legislative bodies closest to the people. A majority of the delegates wanted to create a strong, effective, more highly centralized national government, and they were terrified that, if the state legislatures were allowed to be the bodies charged with ratifying the constitution that established the new government, they would decline to ratify it on the (wholly justified) ground that it would deprive them of many of their existing powers. From the point of view of those seeking to create a more powerful national government, proclaiming that the new Constitution was to be ordained and established by “the people” had an inestimable advantage. Both at the convention and subsequently, it enabled the nationalists and federalists to pose the essential issue as being one of “the people” versus the states. In particular, it allowed them to insist that the proposed new Constitution should be subject to direct ratification by state conventions elected by the people of the several states (or, more precisely, by the electors of those states) for that express purpose and should not be made subject to ratification by the several states’ legislatures. The proponents of a more effectively national government reckoned, almost certainly rightly, that directly elected state conventions would be more likely to ratify the new Constitution than the state legislatures whose power the Constitution threatened. The phrase “the people,” even if left undefined (or perhaps because left undefined), became an exceedingly useful weapon in the federalists’ and nationalists’ rhetorical armory. In the federalists’ hands, the phrase, in and of itself, was a weapon that those on the other side of the debate— those members of the convention who were anxious to protect the states’ rights—found very hard to counter. The convention debated the issue of who should ratify the Constitution on two separate occasions. On both occasions the federalists won. Elbridge Gerry of Massachusetts argued passionately that the final decision should be left in the hands of the states—“Great confusion, he was confident, would result from a recurrence to the

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people”—but he and the few who agreed with him were overwhelmed. George Mason of Virginia insisted that the state legislatures had no legal power to ratify a new federal constitution and asked rhetorically, “Whither then must we resort?,” answering his own question, “To the people with whom all power remains that has not been given up in the Constitutions derived from them.” Madison, who spoke on both occasions, thought it “indispensable that the new Constitution should be ratified in the most unexceptionable form and by the supreme authority of the people themselves.”9 When the final vote was taken, only Maryland and tiny Delaware came down on the side of the states. Thus, the people was not God, not a king, not a clique of aristocrats and certainly not the state legislatures. But who or what was it? What did the concept include? What, if any, were its inclusionary aspects? The founders did not bother to answer that question, either at the convention or anywhere else. Indeed, so little did they have to say on the subject that a modern historian has been led to conclude that, in their eyes, the people were—or, more precisely, the people was—“more incantation than description.”10 One can see what he means, but there was actually more to it than that. Although few of the founding fathers ever said so in so many words, most of them almost certainly had in their minds a composite picture of “the American people,” in much the same way as modern campaigners simplify the complex world of electoral politics by classifying millions of diverse voters under such summary headings as “Joe Six-Pack” or “Soccer Moms.” Most of the founding fathers almost certainly thought the American people consisted largely of the kinds of people of whom, in reality, it actually did consist: freehold farmers and their families, craftsmen, servants, innkeepers, shopkeepers and others in a small way of business, neither aristocrats nor paupers, neither rich nor poor, but equally possessed of a vivid sense of their own importance and their own rights. It was also noticeable that many of the American people— far more than in most other parts of the world—owned guns. That was who, in the founders’ eyes, the American people were, but the important question concerns, not who the founding fa-

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thers thought the people were but what they thought and felt about them. What, in modern parlance, was their take on them? The answers to these questions, if they are to be accurate, need also to be subtle. A large proportion of those who took part in drafting the original Constitution were divided in their own minds on these questions, and inevitably there were marked differences of opinion among them. Nevertheless, there was present in the thoughts and the feelings of most of the founding fathers a certain central tendency—and that central tendency, beyond any doubt, determined the role that was eventually assigned to “the people” under the new Constitution’s terms. There can be no doubt that the American people were accorded a substantial degree of respect by the founding fathers—and by no means only because the people were the only conceivable source of legitimacy available to the nascent republic. By world standards, the people of the United States in the late eighteenth century were an impressive lot. Few of the white men and women among them were desperately poor. Few white males were wholly dependent on others. Most of them were literate. Many displayed admirable qualities of skill, shrewdness and initiative. A considerable number of them had fought bravely and selflessly during the War of Independence. Substantial numbers of Americans, in their scattered villages, towns and states, had already performed remarkable feats of political orga nization. Only the most bigoted among American plantation owners and wealthy merchants could look down on ordinary Americans in the way that French or Prussian aristocrats, for example, could look down on the humble folk over whom they lorded it. In addition, society in the ex-colonies was remarkably fluid, sufficiently so for men and women from different social strata to be able to meet and intermingle. Men and women moved both up and down the social scale. It is anachronistic to speak of late eighteenth-century America as having had, in any latter-day sense, easily defined social classes. The private writings of the founding fathers, and also the speeches they made behind closed doors, bear witness to their respect for their country’s ordinary quotidian inhabitants. In public, the founding

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fathers had, of course, to avoid sounding remotely snobbish or supercilious. What is more impressive is that even in private they evinced respect for the American people at large. Writing to his friend Lafayette, Thomas Jefferson contrasted the stout-hearted people of America with the riff-raff of Europe: “The yeomanry of the United States are not the canaille [rogues] of Paris.”11 At the convention itself, Charles Pinckney of South Carolina, in the speech quoted earlier, urged his fellow delegates to “suit our Government to the people it is to direct. These are I believe as active, intelligent & susceptible of good Government as any people in the world.”12 Elbridge Gerry of Massachusetts, in the course of an attack on proposals that seemed to him to tend in the direction of aristocracy, insisted that “the People who have been so lately up in arms against G.B. for their liberties, will not easily give them up” and went on to impute “the evils existing at present under our [state] Governments . . . to the faults of those in office, not to the people.”13 Benjamin Franklin similarly harked back to the fortitude and loyalty displayed by ordinary Americans during the Revolutionary War: It is of great consequence that we should not depress the virtue & public spirit of our common people, of which they displayed a great deal during the war, and which contributed principally to the favorable issue of it. [Franklin] related the honorable refusal of the American seamen who were carried in great numbers into the British Prisons during the war, to redeem themselves from misery or to seek their fortunes, by entering on board the Ships of the Enemies to their Country; contrasting their patriotism with a contemporary instance in which the British prisoners made prisoner by the Americans, readily entered on the ships of the latter on being promised a share of the prizes that might be made out of their own Country.14

Few such eulogies of the people were delivered at the convention because more of them would have been superfluous. No one pres-

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ent was remotely suggesting that the nation’s new constitutional edifice should be founded on any political principle other than that of popular consent. In fact, however, that deference to the people and the genuine respect that the delegates accorded them coexisted in most of their minds with a much darker vision of the people—or at least a darker vision of what the people, as individuals and as groups of individuals, were capable of. The central tendency of opinion and feeling at the 1787 convention was wary of the mass of the people and suspicious of them, even fearful of them. Anyone reading Madison’s notes of the convention’s proceedings is bound to be struck by most of the delegates’ profound ambivalence concerning the people. On the one hand, the people were definitely to ordain and establish the new constitution; on the other hand, those same people, as individuals, were by no means to be trusted. The majority of the Philadelphia delegates respected the American people but also feared them. The constitutional structure they finally erected reflected—and, to the extent that it still exists, still reflects— that profound ambivalence. The men who wrote the 1787 Constitution were not an especially cynical bunch. They did not suppose that individual human beings acted everywhere and always out of motives that were selfinterested. They cheerfully acknowledged that individual people and groups of people were often capable of acting out of a genuine and disinterested concern for the common good. There was nothing particularly Machiavellian about the majority of the delegates. But at the same time they were all, to use an old-fashioned term, “men of the world.” None of them was a starry-eyed idealist, and all of them did not believe for a moment that their fellow men were either perfect or perfectible. Jean-Jacques Rousseau, their near contemporary, believed that man was good by nature, but not one of the delegates at Philadelphia shared his optimism. Had they been still alive, they would have viewed the romantic flower-power movement of the 1960s with contempt or, at best, benign skepticism.

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The Philadelphia convention was held behind closed doors— and even behind closed windows, with sentries at the gates so that curious onlookers were kept at a distance and prevented from making out what the delegates were saying. The delegates, in addition, committed themselves to not making public any of the convention’s proceedings. Every delegate was therefore free to speak his mind. That was perhaps just as well, because, if people outside had overheard much of what was being said inside, there might have been a popular uprising. The truth is that sooner or later almost all of the delegates who played an active part in the convention expressed, often in vehement terms, their dubiety about the generality of human nature. The delegates who expressed their doubts about humankind’s capacity for foresight, wisdom and self-control ranged from men widely suspected of misanthropy, such as Alexander Hamilton, to men generally regarded as the people’s champions, such as George Mason of Virginia. Here is a selection, as recorded by Madison, of what some of them had to say: Benjamin Franklin (Pennsylvania): “There are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power, and the love of money.” Alexander Hamilton (New York): [referred to] “the passions . . . of avarice, ambition, interest, which govern most individuals . . .” Elbridge Gerry (Massachusetts): “Observed that although members [of a public body], if disqualified themselves might still intrigue & cabal for their sons, brothers, &c, yet as their own interest would be dearer to them, than those of their nearest connections, it might be expected they would go to greater lengths to promote it.” James Madison (Virginia): “The backwardness of the best citizens to engage in the Legislative ser vice gave but too great success to unfit characters.”

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Gouverneur Morris (Pennsylvania): “Pride is indeed the great principle that actuates both the poor & the rich.” George Mason (Virginia): “From the nature of man we may be sure, that those who have power in their hands will not give it up while they can retain it. On the contrary we know they will always when they can rather increase it.” Nathaniel Gorham (Massachusetts): “Rh. Island is a full illustration of the insensitivity to character, produced by a participation of numbers, in dishonourable mea sures, and of the length to which a public body may carry wickedness & cabal.” George Mason (Virginia): [referred ironically to] “those generous & benevolent characters who will do justice to each other’s merit, by carving out offices and rewards for it.” Roger Sherman (Connecticut): “The Constitution should lay as few temptations as possible in the way of those in power.”15

Madison’s whole record of the convention is replete with references to man’s duplicity, depravity, cupidity, overweening ambition and lust for power. Only very occasionally did a delegate beg to differ. However, the delegates’ dubiety concerning human nature was certainly not reserved for the common man, the common people. On the contrary, those assembled in Philadelphia were equally disposed, as we have seen already, to condemn the pretensions and avarice both of kings—those who would “get first all the people’s money, then their lands, and then make them and their children slaves for ever”—and of oligarchs and aristocrats— “those generous & benevolent characters who will do justice to each other’s merit, by carving out offices and rewards for it.” In opposing the imposition of a property qualification for voting in national elections, Franklin commented with characteristic

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egalitarianism: “If honesty was often the companion of wealth, and if poverty was exposed to peculiar temptation, it was not less true that the possession of property increased the desire of more property. Some of the greatest rogues he was ever acquainted with, were the richest rogues.”16 Even Hamilton, who was far less disposed toward egalitarianism than Franklin—and who, in the Federalist Papers, later went on to describe men in general as “ambitious, vindictive, and rapacious”—did not suppose that these unattractive qualities were to be found only in common men. “Give all power to the many, they will oppress the few,” he said at Philadelphia. But he quickly added, “Give all power to the few, they will oppress the many.”17 The difficulty for the delegates at the convention was that, although there was no prospect at all of America becoming a monarchy and only a distant prospect of its becoming dominated by a hereditary aristocracy, there was every prospect of its becoming dominated by the kinds of people who already dominated many of the state legislatures and who on occasion had shown themselves more than happy to rebel against lawfully constituted authority. If the delegates harbored doubts about human beings as individuals, they were even more alarmed by thoughts of what human beings could do when they acted in combination. Today we usually think of large aggregations of individuals as crowds. Most of the men who met in Philadelphia thought of them as, potentially at least, mobs and riotous assemblies. If individuals were capable of harm, assemblages of individuals were capable of even greater harm—and were more prone to it. Again, the speeches of delegates at the convention attest to their fear of mobs and to their intense suspicion of the sorts of cliques and cabals they believed capable of influencing popular assemblies of any kind. Scattered throughout Madison’s notes are such phrases and thoughts as “popular intemperance” (Randolph), “popular passions [which] spread like wildfire, and become irresistible” (Hamilton), “the ignorance of the people” (Gerry), “the political depravity of men” (Madison), “the insensitivity to char-

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acter, produced by a participation of numbers, in dishonourable mea sures” (Gorham), “the dangerous influence of those multitudes without property & without principle” (John Dickinson, Delaware) and the need “to protect the people against the transient impressions into which they themselves might be led” (Madison again).18 Words like “changeableness,” “wickedness,” “mischiefs,” “corruption” and “excesses” litter Madison’s pages. Beyond doubt, language of this kind reflected majority opinion at the convention. Only occasional voices—notably those of Benjamin Franklin, George Mason and James Wilson—expressed more peoplefriendly views. These doubts about the wisdom and prudence of the people en masse were not based solely on prejudice, if indeed they were based on prejudice at all. They were based on the delegates’ real-world experience of what they believed the people were capable of. The modern reader perhaps needs reminding that the latter half of the eighteenth century was a period of great political turbulence in both England and America. Elections on both sides of the Atlantic were typically not orderly affairs, with lines of voters queuing patiently outside polling stations to cast their ballots: they were often rowdy, drunken and shamelessly corrupt. In southern Virginia in colonial times, “there actually existed parvenu gentlemen who promised the voters anything, magistrates who were habitually drunk, and candidates who stripped off their shirts and prepared to wrestle their way into the House of Burgesses.”19 Nothing much had changed by the time of the convention. William Hogarth famously depicted eighteenth-century English elections as scenes of riot, revelry and licentiousness. He could easily have been depicting elections in many American states. Popular politics was not always a pretty sight. Popular politics was also sometimes punctuated by violence. A history of the people’s role in English politics during the eighteenth century is titled Riot, Risings and Revolution.20 The same title could obviously be applied—with even greater force—to a book about the United States. The War of Independence itself had been

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a violent, extralegal affair, with the homes of some Tories looted and torched and suspected British sympathizers tarred and feathered. During and after the war, angry mobs from time to time confronted customs officers and other public officials, demolished theaters thought to be dens of vice and burned down hospitals that, because they were inoculating people against smallpox, were actually thought to be spreading the disease. Largely as a result of the postwar depression, the mid-1780s witnessed public disturbances in a number of states, culminating in the notorious Shays’ Rebellion in Massachusetts. This particular so-called rebellion was quickly suppressed, but not before the state supreme court had been prevented from sitting and the normal process of debt collection suspended in parts of the state. Shays’ Rebellion, and the violence that accompanied it, convinced many in positions of authority across the former colonies of the need for a stronger “general government.” It also persuaded many of them of the need to keep the people in their place. No less than George Washington feared that Shays’ Rebellion and similar commotions exhibited “a melancholy proof . . . that mankind left to themselves are unfit for their own government.”21 At the Philadelphia convention, delegates were clear that one of the principal reasons for creating a stronger national government was “for crushing rebellion whenever it may rear its crest.”22 There was, however, more than one reason for keeping the people in their place. Even in the absence of these sporadic incidents of violence, a majority of the men who met in Philadelphia were convinced of the recklessness and profl igacy of a large proportion of the popularly elected state governments and, for that reason, of the need to establish a strong national government both with effective authority over those governments and also with a substantial capacity for resisting popular demands and pressures, whatever form they took. Several state governments during the early and mid-1780s had printed enormous amounts of paper money, thereby fueling inflation, with Georgia’s currency depreciating by 75 percent in the course of a single year. Some of them had also

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passed laws making it increasingly difficult for creditors to collect the monies owed them by debtors. State governments were also notorious for the speed with which they often took decisions, for the speed with which, having taken them, they reversed them and, not least, for succumbing far too readily to popular pressures. The Rhode Island government was the worst offender (and compounded the offense by declining to send delegates to the convention). One of the main reasons for wanting to keep the ratification process out of the state governments’ hands was delegates’ belief that they were unreliable, unpredictable, cabal-ridden and corrupt. Members of the Philadelphia convention hoped that state conventions elected solely for the purpose of ratifying the Constitution would prove more farsighted and dispassionate. At the very least, state ratifying conventions, unlike state governments, would have no vested interest in preserving the powers of the state governments. Hostility to the state governments and the kinds of people believed to influence and control them runs like a stream—a heavily polluted stream—through Madison’s reports of the convention’s proceedings. The subject recurs repeatedly. Roger Sherman cited Rhode Island as “too subject to faction,” Alexander Hamilton referred generally to the “evils operating in the States,” Edmund Randolph “was sensible that annual elections were a source of great mischiefs in the States,” George Mason drew attention to “the shameful partiality of the Legislature of Virginia to its own members,” James Madison pointed to “another fact not less notorious in Virginia, that the backwardness of the best citizens to engage in the Legislative ser vice gave but too great success to unfit characters,” Gouverneur Morris noted state legislatures’ tendency toward “precipitation.” Mason in a later speech feared that the national legislature “would still so much resemble that of the individual States, that it must be expected frequently to pass unjust and pernicious laws,” Madison in similar language reminded delegates that “the Legislatures of the States had betrayed a strong propensity to a variety of pernicious mea sures,”

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and John Mercer of Maryland concluded one of his relatively rare interventions by saying: “Nothing else [than a strong executive] can protect the people against those speculating Legislatures which are now plundering them throughout the U. States.”23 No one during the more than four months that the convention met rose to counter the expression of sentiments such as these. The subtext was, and is, obvious: the new federal government must be founded on the people, but it must also be protected from the people’s excesses. Paradoxically, the founding fathers’ anxieties about the people arose, not from their social and physical distance from them but from the very opposite, their proximity to them. A Russian duke had little to fear from his impoverished, illiterate and unarmed serfs. For the same reasons, Prussian junkers had little to fear from the mass of their people. Even in Great Britain, where ordinary people were considerably more boisterous, the ruling classes employed troops and firepower that was more than adequate to keep them in check. France in 1787 had yet to blow apart. But in America the common people, far from being “common” in the European sense, were assertive, literate, independentminded, reasonably prosperous and, as we noted earlier, armed. They were uppity, not to be put down easily. It was the people’s strength—and, in a curious way, it was their very strengths and virtues—that made the founding fathers more than slightly nervous of them. In addition, it goes without saying that the delegates to the convention were desperately concerned to defend the interests of property—that is, the interests of property owners. George Mason was merely stating the obvious when he remarked, during a debate about the constitution of a second chamber of the federal Congress, that “One important object in constituting the Senate was to secure the rights of property.”24 John Rutledge of South Carolina was even more blunt: “Property was . . . the principal object of Society.”25 Some of the delegates were themselves seriously rich. Most were well off by the standards of the time. None was poor.

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They all owned property, including in some cases human property, and unsurprisingly they all identified with their fellow property owners. It would have been astonishing if they had not. In the America of that time, there was no need for them to defend the institution of private property as such: no one in the U.S. sought to abolish private property altogether. But what the delegates at the convention did need to do was secure what they called “the rights of property.” Those rights were threatened by people, such as Daniel Shays of Massachusetts, who did not wish to abolish property as such but were more than ready to see taxes left unpaid, debts canceled and the currency debased. It followed that such people must be prevented at almost any cost from exercising undue influence in the new system. It also goes without saying that the founders—proud men, proud of their intelligence and confident in their civic-mindedness and virtue—were keen to see the new republic run, as far as was humanly possible, by people like themselves. They wanted the new America to be governed by an elite, not by a hereditary elite but by an elite of the virtuous and the talented. Madison commented approvingly that the Senate, in particu lar, “would be generally a more capable sett of men.” Rutledge observed, with charming complacency, that “If this Convention had been chosen by the people in districts it is not to be supposed that such proper characters [as themselves] would have been preferred.” Oliver Ellsworth of Connecticut insisted that “Wisdom was one of the characteristics which it was in contemplation to give the second branch [the Senate].” Charles Pinckney liked the idea that members of the Senate might be allowed to serve simultaneously in the executive branch because, as he said, the Senate “might be supposed to contain the fittest men. He hope to see that body become a School of public Ministers, a nursery of Statesmen.”26 Few, if any, of the delegates believed that every individual— whatever his background and whatever his level of education— was fit to govern. Governing was undoubtedly a matter for a talented minority.

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As we shall see in the next chapter, it was in this frame of mind— respectful of the people but also fearful of them, and respectful of them partly because fearful of them—that the delegates to the Philadelphia convention drafted and, in all but three cases, appended their signatures to the 1787 version of the U.S. Constitution.

3 The People in the House of Power

The men who wrote and signed the 1787 Constitution shared a

conviction: that the new Constitution must involve the people and be capable of winning their consent. They also shared a disposition: to respect the people yet at the same time to be wary of them. Finally, as we shall see in more detail in Chapter 6, they shared a theory of governmental structure: that the best kind of government was a government composed of three separate branches, the legislative, the executive and the judicial. One of the delegates’ most difficult and complicated tasks at the convention was to decide how to reconcile their conviction and their disposition with their structural theory. They had to decide how, if at all, they wished to involve the people in each of the three branches of the new government and, if the people were to be involved, to what extent they should be involved. One of the delegates’ first decisions, taken remarkably quickly by the convention’s normal standards, was that the new government’s legislative branch should actually consist not of one branch only but of two. At an early stage, the resolution “that the national

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Legislature ought to consist of two branches” was agreed to without debate or dissent, “except that of Pennsylvania, given probably from complaisance to Doctor Franklin who was understood [he was absent at the time] to be partial to a single House of Legislation.”1 The elderly Franklin was, in effect, the delegates’ mascot, but even he, absent or present, could not persuade his colleagues to share his preference for a single chamber. Even James Wilson of Pennsylvania, who usually took the people’s side during the convention’s debates, insisted that “In a single House there is no check, but the inadequate one, of the virtue & good sense of those who compose it.”2 That point having been settled, the next question to arise concerned who should elect the members of the first of the two branches, which it was agreed—again without either debate or dissent—should be, in some sense, the popular branch, the one closest to the people. On this issue, opinion was more sharply divided. Some delegates— either because they wished to preserve the several states’ prerogatives or because they were even more wary of the people than their colleagues—argued that the members of the first branch should be chosen by the state legislatures, not by the people themselves. The arguments they advanced were mainly of an anti-populist variety. Roger Sherman of Connecticut “opposed election by the people, insisting that it ought to be by the State Legislatures. The people, he said . . . should have as little to do as may be about the Government. They want information and are constantly liable to be misled.”3 Although a delegate from a large state, Elbridge Gerry of Massachusetts agreed that the state legislatures constituted the appropriate electorate: The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts it had been fully confirmed by experience that they are daily misled into the most baneful mea sures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.4

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Pierce Butler of South Carolina likewise “thought an election by the people an impracticable mode.”5 But proponents of those views were, and remained, in a small minority. It was clear from the outset that a large majority of the delegates were either enthusiastic about the idea of popular elections to the first branch or else resigned to the idea. George Mason, in an interesting speech, one that in the late eighteenth century could have been made only in America, “argued strongly for the election of the larger branch by the people.” In one of the many tributes paid during the convention to the constitution of Great Britain, Mason argued that the larger branch would be “so to speak, our House of Commons.” He added that “We ought to attend to the rights of every class of the people.” He made this latter point, not on grounds of grand political principle but because, as he said, the rich, if they were sensible, ought to have regard to the interests of the poor because their own heirs, “their posterity,” might at some point find themselves amongst the ranks of the poor.6 In contending strenuously “for drawing the most numerous branch of the Legislature immediately from the people,” James Wilson was less prosaic: He was for raising the federal pyramid to a considerable altitude, and for that reason would want to give it as broad a base as possible. No government could long subsist without the confidence of the people. In a republican Government this confidence was peculiarly essential.7

It is not surprising that James Madison agreed with Wilson. It is more surprising that Alexander Hamilton—no great fan of the people or, so far as one can tell, of people in general—also agreed. Arguing in a later debate that the first house should be enlarged, so that every representative could remain in closer touch with a smaller body of constituents, Hamilton avowed himself a friend to a vigorous Government, but would declare at the same time, that he held it essential that the popular branch of it should be on a broad foundation.

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He was seriously of opinion that the House of Representatives was on so narrow a scale as to be really dangerous, and to warrant a jealousy in the people for their liberties.8

In the event, George Washington, on the very last day of the convention and intervening for the first and only time in one of its debates, took the same line and said that he too desired to see the number of citizens in each House district reduced drastically from 40,000 to 30,000. No one demurred. No vote was taken. His motion was accepted. And that was that. In all of the three roll-call votes that had previously been taken, the number of state delegations favoring a directly elected first chamber always exceeded the number that supported election by the state legislatures. Only Connecticut, New Jersey, Delaware and South Carolina held out. All of the big states were on the other side. Elbridge Gerry of Massachusetts could not even carry his own state delegation. In the house of power created by the new Constitution, the people were definitely to have a room of their own. While members of the convention were debating the issue of which body, the electors or the state legislatures, should choose the first chamber’s members, they were also debating the length of those members’ terms. For how long should they serve before facing reelection? Predictably, those keenest on keeping the people firmly in their place argued in favor of longer terms, so that members of the national legislature could enjoy the maximum possible amount of independence. On the other hand, the people’s friends—and those who feared that, if the terms eventually proposed were too long, the Constitution as a whole would not be ratified—favored the shortest possible terms. At one end of the spectrum, Hamilton urged the necessity of three years: “There ought to be neither too much nor too little dependence on the popular sentiments. The checks in the other branches of Government would be but feeble and would need every auxiliary principle that could be interwoven.” At the other end of the spectrum, Oliver Ellsworth of Connecticut moved for one

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year: “The people were fond of frequent elections and might safely be indulged in one branch of the legislature.” Splitting the difference, Edmund Randolph proposed two years: “he was sensible that annual elections were a source of great mischiefs in the States, yet it was the want of such checks against the popular intemperance as were now proposed, that rendered them so mischievous.”9 The convention agreed, without much ado, to split the difference, and twoyear terms were adopted without objection. The language used in that particular debate, however, is highly significant. Although allocated a room of their own in the new house of power, the people were, so far as was possible, to be kept confined to that room. Hamilton worried that “the checks in the other branches of the Government would be but feeble.” Ellsworth, believing that the checks in the other branches would, in fact, be strong enough, concluded therefore that the people “might be safely indulged.” Randolph, like Ellsworth, had confidence in the sufficiency of the “checks against the popular intemperance [that] were now proposed.” With only James Wilson appearing to have greater confidence in the people’s good judgment, the central preoccupation of the great majority of the delegates at the convention was with ensuring that the people’s power should be restrained or, in the word that they customarily used, checked. One of the principal means to that end was to be the new federal legislature’s second branch. The convention spent many days debating how that branch should be constituted and what its powers should be.10 There cannot be any doubt that almost every one of the delegates believed that in the new system one of the second branch’s main functions should be to counteract the extremism, unpredictability and hunger for power that they imagined the members of the first branch would exhibit. Not a single person at the convention ever suggested, or probably even thought of suggesting, that the first branch’s powers should actually be greater than the second’s—or, in other words, that the first branch should actually come first, not merely nominally but in order of importance. On the contrary, the Senate was invariably regarded as

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being, at least incipiently, the superior body. Hence, in part, its august name, with its Roman resonances and its hints of the superior wisdom that the eighteenth century tended to associate with old age. Gouverneur Morris asked rhetorically what the second branch’s object was to be. He answered his own question: “to check the precipitation, changeableness and excesses of the first branch.” Edmund Randolph thought, “The licentiousness of the State Legislatures proved the necessity of a firm Senate. . . . If it not be a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it.” Alexander Hamilton, ever provocative, maintained that the British House of Lords was “a most noble institution” on the ground that its members formed “a permanent barrier against every pernicious innovation.” James Madison, at his most sententious, observed that “The use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch,” adding on a subsequent occasion: In order to judge of the form to be given to this institution [the Senate], it will be proper to take a view of the ends to be served by it. These were first to protect the people against their rulers: secondly to protect the people against the transient impressions into which they themselves might be led. . . . Another reflection equally becoming a people . . . would be that they themselves, as well as a numerous body of Representatives, were liable to err also, from fickleness and passion. A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils.11

Of course, the next question was how to select this desirable “portion of enlightened citizens.” Two possibilities found no favor. One—that the senators be chosen by the members of the first

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branch, the popular branch—was raised briefly only to be dropped. The other—direct election by the people—had, or so it would seem, only a single backer. James Wilson on several occasions advocated election by the people, but on the one occasion that he moved a formal motion to that effect he failed to find a seconder. The broad consensus was in favor of election by the state legislatures. This procedure had the virtue of connecting the Senate with the people, albeit indirectly, given that the state legislatures, or at least their lower houses, were themselves elected directly. It also had the virtue, in the eyes of many delegates, of according the states and their governments a formal and substantial role in the new national government’s structure. John Dickinson of Delaware, who moved the motion “that the members of the 2nd branch ought to be chosen by the individual Legislatures,” said he had two grounds for doing so: 1. because the sense of the States would be better collected through their Governments; than immediately from the people at large; 2. because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible.12

Clearly, Hamilton was not alone in his respect for British institutions. In the end, the motion in favor of election by the state legislatures was carried easily by nine states to two. The question of the length of tenure of members of the Senate was more complicated and somewhat—but only somewhat—more contentious. Everyone present agreed that, of course, the terms of senators should be longer than the terms of members of the first branch. If, as all the delegates believed, the Senate was to be firm, a “fence against fickleness and passion” and an element of order and stability in the system, then its members needed to be well distanced from the people—and even from the state legislatures— and to enjoy a substantial degree of independence from the whole of the rest of the government. Characteristically, Hamilton believed

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members of the Senate should serve for life (“No temporary Senate will have firmness eno’ to answer the purpose”), and Gouverneur Morris agreed with him (“To make it independent, it should be for life”); but none of their colleagues was prepared to go that far, partly because tenure for life would inevitably smack of aristocracy.13 The question was reduced to whether senators should serve for nine years, seven, six, five or four and whether they should all be elected at the same time or in accordance with some scheme of rotation. As usual, the more people-friendly delegates inclined to favor shorter terms—though no one spoke in favor of a term for senators less than double the one that had been agreed for members of the first branch—and the less people-friendly delegates argued for longer ones. As in the case of the House of Representatives, they finally split the difference, it being agreed that senators should serve for six years, with (in the words of the motion) “1 ⁄3 to go out biennially.”14 Finally, what were to be the second branch’s powers? It was generally agreed that the Senate should have more wide-ranging powers than the House, partly because it was deemed to be the more sober and august body of the two and partly because it represented the several states in the national legislature in a way that the House did not (especially after the decision had been taken to award each of the states equal representation in the second branch). The relevant debates at the convention—most of which took place during its concluding phase—turned on precisely what those additional powers should be. In a peculiarly convoluted fashion, the convention voted narrowly to deprive the Senate of a power that many delegates thought that it ought to have (and that some of them thought it ought to have exclusively)—namely, the power to originate money bills. It finally decided to adopt the British practice of allowing only members of the lower house to originate such bills. But that particular restraint on the Senate’s powers mattered scarcely at all as the Senate was still empowered to amend money bills and even to refuse to pass them altogether. In an almost equally convoluted

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fashion, the convention also deprived the Senate of a power that many delegates thought it ought to have and that, indeed, had been accorded it previously during the convention’s discussions— namely, the power to determine who should be chosen as the chief national executive if the designated electors failed to give any of the candidates for that office an absolute majority. The House eventually acquired that power, with the proviso that each state’s House delegation would cast one and only one vote. But those were the only respects—one largely inconsequential, one undoubtedly of greater potential importance—in which the powers of the House were allowed to exceed those of the Senate. Otherwise the Senate emerged in the way that a majority of the delegates to the convention hoped that it would: as, so to speak, the thicker of the two legislative branches. No piece of legislation, not even a money bill, could be enacted without the Senate’s approval—like that of the House, its veto power was absolute—and the Senate acquired additional, very important powers that it did not share in any way with the House. Under the new Constitution, treaties with foreign countries were required to be ratified “by and with the advice and consent of the Senate” (voting by a two-thirds majority), and appointments to posts in the executive and judicial branches were also required to be made “by and with the advice and consent of the Senate” (this time by a simple majority). The popularly elected first branch was given no such powers. In the case of treaties, most delegates initially seem to have given the matter little thought and may well have assumed that the legislative body would both negotiate and ratify international treaties. When the power to make treaties was finally lodged in the executive branch, the issue of ratification at once arose. Should treaties be ratified, as though they were ordinary laws, by the whole of the legislature, or should they be ratified by the Senate alone, the Senate being the more compact and deliberative body? One of the convention’s occasional committees, the so-called Committee of Eleven, adapting language previously suggested by Hamilton, proposed the formula, just quoted, with which the whole world is

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now familiar. But the indefatigable James Wilson moved to insert the words “and House of Representatives” after the phrase “the advice and consent of the Senate” on the ground that “As treaties . . . are to have the operation of laws, they ought to have the sanction of laws also.”15 On this occasion, he did find a seconder, but his motion was overwhelmingly defeated, only Pennsylvania, his own state, voting in favor. In the case of appointments to both subordinate executive offices and the judicial branch, no one seems to know quite how the nomination and confirmation powers finally came to be lodged with, respectively, the head of the executive branch and the Senate. Toward the end of the proceedings, the Committee of Eleven bundled both kinds of appointments into the same clause of the proposed Constitution, and after a short debate the convention as a whole concurred. James Wilson was again one of the few dissenters, this time on the grounds that the Committee of Eleven was proposing to blur the distinction between the legislative and executive powers and that, if the head of the executive was to be responsible for the conduct of the executive branch of the government, then he should bear the sole responsibility for making executive appointments. But Gouverneur Morris was clearly speaking for the majority when he said “that as the President was to nominate, there would be responsibility, and as the Senate was to concur, there would be security.”16 Taken as a whole, the provisions of the Constitution relating to the legislative branch, and to the second branch of it in particular, meant that the U.S. Senate emerged, not as the legislature’s second branch but in reality as its first, with more power, indeed, than almost any other so-called upper house or second branch in the modern world.17 The Philadelphia Constitution’s provisions also meant that the members of that exceedingly powerful branch of the government were not to be chosen directly by the people, as was the case with members of the House of Representatives, but by the state legislatures. The people were still in the course of being kept firmly in their place.

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Nor was the executive branch to be directly in the people’s hands. The orga nization and powers of the executive were another subject to which most of the delegates appear not to have given a great deal of thought beforehand. Agreement was reached early on that the executive should consist of only one person rather than a small committee—as Elbridge Gerry put it, a three-person executive, “would be a general with three heads”18 —but the issue of what that office and its holder should be called remained up in the air throughout most of the convention’s proceedings. Speakers indiscriminately used phrases and words such as “national executive,” “executive magistracy,” “supreme executive authority,” “chief magistrate,” “governor” and, quite simply, “the executive.” The notion that the chief executive should be called “the president” was remarkably slow to emerge. But the decision that the chief executive should not be elected by the people at large caused little controversy and was quickly arrived at. Popular election did have its proponents. Madison favored the idea in principle but could see serious practical objections.19 Gouverneur Morris came out strongly for direct election, not least because he was appalled by the idea that the head of the executive might be chosen by the legislative branch: [The national executive] ought to be elected by the people at large. . . . That difficulties attend this mode, he admits. But they have been found superable in N.Y. & in Connecticut and would he believed be found so, in the case of an Executive for the U. States. If the people should elect, they will never fail to prefer some man of distinguished character, or ser vices; some man, if he might so speak, of continental reputation.—If the Legislature elect, it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.20

Predictably, James Wilson was inclined to agree, though, like Madison, he could see practical difficulties.

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However, those who favored direct election at the convention constituted only a tiny minority. The great majority more or less took it for granted that direct election by the people was a bad idea. In some cases, they thought it was a very bad idea. Roger Sherman objected that the people at large “will never be sufficiently informed of characters, and besides will never give a majority of votes to any one man.” Charles Pinckney maintained that the people would “be led by a few active & designing men.” George Mason, who often took the side of the popular cause, on this particular topic took the opposite view: “He conceived it would be as unnatural to refer the choice of a proper candidate for chief Magistrate to the people, as it would, to refer a trial of colours to a blind man. The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.” Elbridge Gerry was even more emphatic: “He was against a popular election. The people are uninformed, and would be misled by a few designing men. . . . The popular mode of electing the chief Magistrate would certainly be the worst of all.”21 On the one occasion when the possibility of direct popular election was put to a vote, it was negatived by a margin of nine states to one, with only Pennsylvania, once again, voting in favor. The convention thus rejected popular election, but in due course it also came to reject choice of the executive by the legislative branch. A large proportion of the delegates—eventually a majority— came to the view that election by the legislature would render the executive overly dependent on the legislature, especially, but not only, if the executive were allowed to put himself forward for reelection by that body. Delegates certainly wished to preserve the independence of the two branches vis-à-vis one another. But many of them also had another thought in mind: that legislatures as such were suspect and dangerous bodies. Their experience and observation of the state legislatures had taught them as much. Suspicion of, and hostility toward, the state legislatures was a constantly reiterated theme of the convention’s debates; and much of that suspicion and hostility clearly transferred itself to the proposed new na-

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tional legislature, even after the Senate, with its independent authority and substantial powers, had been put securely in place. Legislative bodies in general were clearly not in most delegates’ good books. Elbridge Gerry of Massachusetts knew whereof he spoke when he said that in his own state “the worst men get into the Legislature. Several members of that Body had lately been convicted of infamous crimes. Men of indigence, ignorance & baseness spare no pains, however dirty to carry their point against men who are superior to the artifices practised.”22 In a different context, John Dickinson of Delaware “took it for granted that all were convinced of the necessity of making the General Government independent of the prejudices, passions, and improper views of the State Legislatures.”23 Madison put the central point bluntly: The Legislatures of the States had betrayed a strong propensity to a variety of pernicious mea sures. One object of the National Legislature was to control this propensity. One object of the National Executive, so far as it would have a negative on the laws, was to control the National Legislature, so far as it might be infected with a similar propensity.24

Madison’s views were far from being controversial, and those who initially favored election of the chief executive by the state legislatures did so mainly to retain power in the hands of the several states rather than in the hands of the state legislatures as such. Very gradually, their preference for election by the state legislatures was overborne. But, if neither the people directly nor the national legislature were to choose the national executive, who was? James Wilson’s personal preference, as we have seen, was for direct popular election; but, acknowledging that that idea had few backers, he proposed what was, from his point of view, the next-best solution: the creation of a separate body of electors who themselves would choose the executive.25 That concept, to judge by subsequent debates, remained in delegates’ minds even as they considered other

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alternatives. Indeed, when the possibility of choosing a body of electors was first voted upon, it was accepted by the comfortable margin of six states to three. But any agreement on creating a special body of electors raised in turn the question of who would elect the electors. There were two obvious possibilities: direct election by the people—the mode favored by Wilson when he first broached the idea—and election by the state legislatures, which, despite their infirmities, would at least have the advantage of giving the state governments a formal constitutional role in the process. Faced with this difficult choice, the convention simply gave up, as it had in the case of the franchise. It refused to make a decision and instead fudged the whole matter, accepting a slightly reworded version of the Committee of Eleven’s suggestion that each state should choose its electors “in such Manner as its Legislature may direct.”26 It was thus left to the state governments—and to the future—to determine whether or not the people themselves would elect the electors. The issue of who should elect the president was naturally intertwined with two other questions, themselves intertwined: those of how long the president’s term of office should be and whether or not a person already in office should be eligible for reelection. Most of those delegates who felt especially strongly that the executive branch should not be chosen by the national legislature also believed that, in order to maintain the chief executive’s independence of the legislature, he should serve for an extended term and should not be eligible for reelection. By the same token, those who favored election by a specially chosen body of electors tended to be more relaxed both about the length of the president’s term of office and about his re-eligibility. These issues, difficult in themselves, were impossible to separate. Largely for that reason, the convention spent some ten days at various times during the summer going round and round, and then round and round again, in slowly revolving circles—a process that speeded up only when it became clear that the delegates must soon either agree on the relevant constitutional provisions or else abandon altogether the

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task of agreeing a new constitution. One exasperated delegate “complained much of the tediousness of the proceedings” while another observed wearily: “If we do not decide soon, we shall be unable to come to any decision.”27 Debates on the question of how long the chief executive’s term of office should be eventually bordered on the farcical. As in the case of the Senate, the great majority of delegates took the view that the executive’s term should be a relatively long one, certainly longer than that of members of the first chamber—the popularly elected chamber—of the legislature. The case for an extended term was put succinctly be Oliver Ellsworth of Connecticut: “If the elections be too frequent, the Executive will not be firm eno’. There must be duties which will make him unpopular for the moment. There will be outs as well as ins. His administration will therefore be attacked and misrepresented.”28 Hugh Williamson of North Carolina agreed: “If the elections are too frequent, the best men will not undertake the ser vice and those of an inferior character will be liable to be corrupted.”29 Certainly as long as the possibility of election by the national legislature was in the air, some delegates favored terms that were exceedingly long by any standards. Gouverneur Morris and Jacob Broom of Delaware advocated life tenure, and James McClurg of Virginia suggested that the executive magistrate should serve indefinitely, subject to good behavior.30 Unwilling to go that far, a majority appeared to favor six or seven years. Just how chaotic the discussion eventually became is suggested by a passage in Madison’s record: Elbridge Gerry: “That the Executive should be independent of the Legislature is a clear point. The longer the duration of his appointment the more will his dependence be diminished. It will be better then for him to serve 10, 15, or even 20, years and be ineligible afterwards.” Luther Martin “suspending his motion as to the ineligibility, moved ‘that the appointment of the Executive shall continue for eleven years.’ ”

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Gerry “suggested fifteen years.” Rufus King: “Twenty years. This is the medium life of princes.” William Richardson Davie: “Eight years.”31

Unsurprisingly, the issue was finally referred to the same Committee of Eleven that in due course recommended the electoral college. The issue of whether or not the holder of the national executive office should be eligible for reelection was more straightforward but—largely because it was closely entwined with the issue of how long presidents should serve for—caused equal difficulty. While some delegates maintained that the chief executive should not be eligible for reelection in order to distance him from the legislature (on the assumption that the legislature would be the electing body), others objected strongly to the notion that someone should be barred from continuing in office even if he were doing a good job. Roger Sherman of Connecticut was “against the doctrine of rotation as throwing out of office the men best qualified to execute its duties.” Gouverneur Morris took the same view: “The ineligibility proposed by the clause as it stood [the one then being debated] tended to destroy the great motive to good behavior, the hope of being rewarded by a re-appointment. It was saying to him, make hay while the sun shines.” For his part, James Wilson did not want good men “cast aside like a useless hulk.”32 Against that, there were delegates who feared that, if someone were eligible to be reelected indefinitely, the national executive might turn itself into a monarchy. Both Edmund Randolph and George Mason had doubts on this score, Randolph observing that “the permanent temper of the people was adverse to the very semblance of monarchy.”33 Impasse ensued—with the result that the issue of eligibility for reelection, along with the issue of the chief executive’s term of office, was also referred to the self-same Committee of Eleven. In private, and in the course of a discussion of which there is no record, the committee, chaired by David Brearly of New Jersey, decided to recommend to the convention a somewhat shorter term of office

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than the ones that most delegates had hitherto entertained: one of only four years. That recommendation, however, was coupled with a tacit recommendation—tacit because no actual mention of the subject was made in the proposed text—that no bar be placed on an incumbent’s eligibility for reelection on any number of occasions. The delegates by this time appear to have been exhausted as well as impatient, and both of the committee’s suggestions were accepted virtually without debate. Motions to substitute seven and six years for the recommended four years were heavily defeated, and every state except North Carolina in the end voted to accept the concept of a four-year presidency combined with indefinite eligibility for reelection. Leafing through Madison’s notes, the reader is left with the impression that by this time the delegates would have accepted almost anything within reason.34 The role of the people in the election of the chief magistrate was thus left ill defined. On the one hand, the people were not to elect the president directly. On the other hand, it was left open to the legislature of each state to decide that the people of that state should elect, if not the president himself, then at least their own state’s body of presidential electors. In addition, the electors chosen by each state, whoever chose them, were invited to elect a president every four years rather than every six, seven, ten, fifteen or even twenty years, and they were also left free, if they wanted to, to elect the same individual once, twice or any number of times. In connection with electing the president, the people at large were at least left with an opening. Like almost everything else relating to the executive branch, the question of the powers to be exercised by the executive was left largely to the last minute. The delegates were all but unanimous in wanting a strong executive branch, though one that was well short of an absolute monarchy; but they were slow to work out what they meant by that in practice. It was only with difficulty, and toward the end of their proceedings, that the delegates agreed that the president should have the powers to place before the Senate the names of potential holders of the most important executive and

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judicial offices and to fill vacancies in more subordinate posts on his own. The respective roles of the legislative and executive branches in the making of foreign policy were left vague, with the president to be commander in chief of the armed forces but with the Congress—as it was eventually decided to call the two-twig legislative branch—having the sole power to declare war. But concern about the role that the people were to play in the new system arose under two different headings. One of them related to whether or not the president should have the power to veto legislation passed by Congress and, if so, whether Congress should have the power to override any such veto. By the standards of the convention, agreement on both points was reached remarkably quickly. A large majority of delegates favored a veto power of some kind. A large majority also believed that the president should not have an absolute veto: that Congress should be able to override him. Delegates were, in Roger Sherman’s words, “against enabling any one man to stop the will of the whole”; but they were anxious at the same time that the executive magistrate should have substantial power both to defend his own prerogatives and, in Madison’s words, “to prevent popular or factious injustice.”35 As always, the alleged excesses of the state legislatures loomed large in the discussions. So did the widespread belief among those attending the convention that there was always great danger in numbers: A controul over the [national] legislature might have its inconveniences. But view the danger on the other side. The most virtuous Citizens will often as members of a legislative body concur in mea sures which afterwards in their private capacity they will be ashamed of. Encroachments of the popular branch of the Government ought to be guarded against.36

The principle of an executive veto having been long accepted, the only serious point of contention now concerned whether the legislature’s override should require a vote of two-thirds or threequarters of the members of each house. Those most fearful of ex-

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ecutive usurpation (“Why might not a Cataline or a Cromwell arise in this Country as well as in others?”) most fiercely opposed an absolute vote and favored a relatively modest two-thirds override; those most fearful of legislative dominance (“There might be tempestuous moments in which animosities may run high between the Executive and Legislative branches, and in which the former ought to be able to defend itself”) favored either an absolute veto or a three-fourths override, one that would be more difficult to achieve than two-thirds.37 During the convention’s last week, the delegates finally opted by the narrowest possible majority—six states to five, with two divided—for the two-thirds ratio. For once, Madison the note taker, who personally favored the more demanding three-fourths ratio, allowed himself the luxury of recording that one of the men amongst the Virginia delegates who sided with him was a certain “General Washington.”38 The other issue that raised concerns in delegates’ minds about the role of the people in the new political order concerned the part that the “general government” should play in the event of some new Shays-like uprising. It is easily forgotten—though in the light of what happened in 1861 it should not be—that the continuing possibility of rebellion, insurrection and riot loomed large in delegates’ minds. They feared the people in arms, and they alluded to those possibilities frequently, even when, on the face of it, unrelated matters appeared to be under discussion. It is striking that Madison’s own preface to his volume of Notes—not published in his lifetime—contains the following paragraph: As the pub. mind had been ripened for a salutary Reform of the pol. System, the interval between the proposal & the meeting . . . of Deputies at Philadelphia had continued to develop more & more the necessity & and the extent of a Systematic provision for the preservation and Government of the Union; among the ripening incidents was the Insurrection of Shays, in Massachusetts against her Government; which was with difficulty suppressed, not withstanding the

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influence on the insurgents of an apprehended interposition of the Federal troops.39

Madison was one of those determined that such interpositions should have a more potent deterrent effect in future. Madison’s view was generally accepted, and the debate on the issue at the convention turned almost entirely on how far the national government should be permitted, or even required, to interfere in the affairs of the state militias. The issue was less one of efficiency and efficacy than of the states’ rights to control their own internal affairs. Elbridge Gerry, probably because his own state, Massachusetts, had succeeded in quelling Shays’ Rebellion without assistance from the federal government, delivered himself of a jeremiad against federal interference. He was “against letting loose the myrmidons of the U. States on a State without its own consent. The States will be the best judges in such cases. More blood would have been spilt in Massachusetts in the late insurrection, if the General authority had intermeddled.” 40 The convention consistently rejected proposals that would, in effect, have handed over detailed control of the state militias to the national government, but the central point remained. The Constitution, as finally agreed, gave the new national legislature explicit powers “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasions” and “To provide for orga nizing, arming, and disciplining, Militia, and for governing such Part of them as may be employed in the ser vice of the United States.” As a corollary, the president was made commander in chief “of the Militia of the several States, when called into the actual Ser vice of the United States.” Again, the people were to be kept strictly in their place—by force if necessary. In respect of the new federal judiciary, they were not to have any place at all. At the Philadelphia convention, there was never the slightest suggestion that the people themselves should elect federal judges and scarcely any support for the idea that federal judges

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should be appointed by the whole of the national legislature—in other words, in a way that enabled the legislature’s popularly elected first branch to play a part. One of the convention’s first decisive acts was to strike down, with nine states opposed and only two in favor, the motion “that the National Judiciary be chosen by the National Legislature.”41 James Wilson, speaking against the motion, insisted that “Experience shewed the impropriety of such appointments by numerous bodies,” and Madison with considerable vehemence said that he too “disliked the election of the Judges by the Legislature or any numerous body.”42 The possibility of involving the popular branch of the legislature in the choice of judges was mooted only once more at the Philadelphia convention. It was never seriously debated again. There was, however, continuing debate over whether judicial appointments should be made by the executive branch alone, by the second branch of the legislature alone or by some combination of the two. To begin with, some delegates favored the notion that the executive should have the exclusive and unfettered power to make the appointments. James Wilson wanted the judges “appointed by a single, responsible person,” and the so-called New Jersey Plan contained a provision to the same effect; but that approach won few supporters, partly because it would give the executive too much power and also power in more than one branch of the government, and in due course a large majority voted it down.43 A larger proportion of delegates favored appointment by the second branch of the legislature alone, without any involvement on the part of the executive, Roger Sherman of Connecticut arguing, among other things, that “It would be less easy for candidates to intrigue with [members of the Senate] than with the Executive Magistrate.”44 At one point that option secured the backing of a two-to-one majority, but a consensus gradually developed around the idea—initially advanced by Nathaniel Gorham of Massachusetts—that the executive should nominate individuals for judicial appointments, but subject to the second chamber’s approval. “This mode,” as Gorham himself put it, “had been ratified by the experience of 140 years in Massachusetts.

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If the appointment should be left to either branch of the Legislature, it will be a mere piece of jobbing.”45 One important issue, however, was never resolved. Indeed no serious effort was ever made to resolve it, at least at the convention. That was the issue of whether members of the federal judiciary should have the power to declare acts of both the legislature and the executive unconstitutional. Perhaps the delegates felt that they already had more than enough on their plates and did not feel up to tackling yet another contentious issue. Stray remarks made by delegates in the course of debates on other topics suggest that, if the convention had debated the issue, it might have found itself at loggerheads. Madison seemed to take for granted the idea that “A law violating a constitution established by the people themselves, would be considered by the Judges as null & void”; but on another occasion and in a different context, John Mercer of Maryland observed that he “disapproved of the Doctrine that the Judges as expositers of the Constitution should have authority to declare a law void.”46 The Constitution in the end stated only and very vaguely that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.” It was left to the federal courts, beginning with Marbury v. Madison in 1803, to settle a matter that, it could be argued, the convention itself ought to have settled. On the separate question of how the Constitution should be amended, if amendments proved necessary, the convention did reach conclusions. The delegates realized, of course, that their draft constitution could not possibly be a work of absolute perfection and that, even if it were, the country’s circumstances were bound to change. As George Mason observed, “The Convention, ’tho comprising so many distinguished characters [the delegates were not collectively given to modesty], could not be expected to make a faultless Government”; and Gunning Bedford of Delaware reckoned it would be better “that a defective plan should be adopted, than that none should be recommended. He saw no reasons why defects might not be supplied by meetings 10, 15, or 20 years hence.”47

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On both of the two occasions when the method of amending was debated at any length, views differed. Some thought the national legislature should take the initiative in proposing amendments. Some thought the state legislatures should take it. Some thought that conventions should play a central role in the amending process. Some thought otherwise or wondered aloud how conventions could or should be organized for the purpose. The final outcome—an attempt, notably successful, to please almost everybody— survives as one of the most convoluted articles anywhere in the U.S. Constitution: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

In the event, the Constitution was signed only two days later, and the delegates did not have time to sort all that out. During the long hot summer they spent in Philadelphia, America’s founding fathers thus constructed a constitutional house of power. As we have seen, they allocated one capacious room—a downstairs room—to the people, in the guise of the electors in each state for the more numerous branch of that state’s legislature. But for the time being that was the only room the people were allocated. They were given only limited and indirect access, if any access at all, to all of the other rooms in the new house. Members of the second chamber of the legislature, the Senate, were to be elected by the members of the state legislatures, not by the people. The executive magistrate, the president, was to be chosen by electors appointed by each state in a manner to be determined by that state’s legislature—a manner

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that might, or might not, take the form of election by the people. The judges were not to be elected at all. All of the other institutions of the government were given powers to act as a check on the will of both the people themselves and the people’s elected representatives. There was nothing of any significance that the House of Representatives could do entirely on its own. In the circumstances of the late eighteenth century, it was quite extraordinary—indeed much to be wondered at—that the constitution of any country should not only be ordained and established by that country’s people but should, in addition, assign to those same people an entrenched and substantial share of political power. The British House of Commons undoubtedly had the potential in time to become a genuine house of the people, but it was certainly no such institution in the 1780s; and sovereignty in Great Britain remained for the time being in the hands of—where else?— the sovereign. America’s 1787 Constitution was, by the standards of the contemporary civilized world, many decades ahead of its time. But, simultaneously, it was far from creating arrangements in which the people at large were to be either the sole or the dominant political power. The people were given a place, to be sure, but they were also to be kept in that place, as securely as could be arranged. The founding fathers’ profound ambivalence about the American people—and, indeed, about people in general—manifested itself in everything they did. The founders’ Constitution was signed in the Pennsylvania State House on September 17, 1787. By the end of June 1788, less than a year later, having been ratified by the stipulated nine state conventions, it came legally into force. The four largest states— Pennsylvania, Massachusetts, Virginia and New York—had all ratified by the end of July of the same year, and it remained only for a few stragglers to come into line. Ratification was hotly contested, including in all of the large states, with criticism directed against the diminution of the individual states’ independence and authority and against the new Constitution’s alleged biases toward aristocracy and even monarchy. But the anti-federalists, as they be-

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came known, were everywhere defeated, and the existing U.S. Congress, established under the Articles of Confederation, duly dissolved itself. The first presidential election was held in January 1789, and the electors’ unanimous choice as president, George Washington, took the oath of office on April 30, 1789. The men who met at Philadelphia during the summer of 1787 hoped and prayed that the political structure they were erecting would still be standing after many generations. They were building, they hoped, for the future. “We are,” one of them said, “laying the foundation for a great empire.”48 One of the most striking features of the debates at the convention is the delegates’ concern to erect as stable and durable a structure as they possibly could. They freely acknowledged, as we have seen, that their Constitution would require amendment and modification; but they were nevertheless determined, so far as they possibly could, not to leave their work unsightly, rickety or liable to collapse. Edmund Randolph made a point that seems to have been in the minds of most of them: There are certainly seasons of a peculiar nature where the ordinary cautions must be dispensed with; and this is certainly one of them. He would not as far as depended on him leave anything that seemed necessary, undone. The present moment is favorable, and is probably the last that will offer.49

“Something must be done,” Elbridge Gerry later observed, “or we shall disappoint not only America, but the whole world.”50 But the delegates’ hopes and their expectations were very far from being the same thing. They were well aware that their proposed Constitution might not be ratified by the requisite number of states and that it might lack the support of one or more of the largest and most important states. They were also well aware that, even if the Constitution was ratified, trying to work it might prove an impossible task, with the federal government’s authority defied by recalcitrant states and with individual states competing against each other aggressively and possibly illegally. Civil insurrection

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was always a possibility. So was the possibility—constantly alluded to at the convention but never really addressed—of a serious falling out between North and South over the issue of slavery. Madison more than once insisted that the most significant line of division in America lay, not between the large and small states but between the Northern and Southern states—“from the effects,” as he put it, “of their having or not having slaves.”51 Had the founders known that the issue of slavery would lead to a terrible war between the Northern and Southern states, they would have been both disappointed and dismayed; but they would not have been in the least surprised. The founding fathers thus knew they were playing for high stakes and also knew that their historic gamble might not come off. That emotional compound of high ambition mixed with considerable trepidation was never openly expressed during the convention but is well captured by the opening paragraph in the very first of the Federalist Papers (written, as it happens, by Alexander Hamilton): After an unequivocal experience of the inefficacy of the subsisting federal government, you are called upon to deliberate on a new Constitution for the United States of America. The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong

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election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.52

The constitutional document that was ratified between 1787 and 1790 was, inevitably, the somewhat messy product of innumerable compromises, glossings over of difficult issues and hasty decisions made at the last moment. Anyone could pick holes in it, and many did. The delegates themselves were well aware of the document’s defects (although not always agreeing on what they were). The Constitution, as drafted and ratified, probably embodied the best solutions available at the time to a set of political problems, many of which were novel, some of which were intractable. It was simultaneously a major state document, one of the most formidable in human history, and a product of the familiar processes of politicking. The delegates were certainly pleased that they had been able to concoct the whole thing behind closed doors. They frequently referred to that fact. Rufus King of Massachusetts, in the very last resolution moved at the convention, proposed that its journals should either be destroyed or else deposited in the custody of the president. His motive was obvious: “He thought if suffered to be made public, a bad use would be made of them by those who wished to prevent the adoption of the Constitution.”53 His proposal was accepted. But then, over many ensuing decades, there occurred a development that would have astonished and delighted the great majority of the men present at the convention and, in all probability, amused several of them. Exactly when that development took place and quite why it took place are matters of dispute among historians, but there is no disputing the fact that it did take place. The Constitution of 1787 came to be regarded in the U.S., and is still regarded in the U.S. today, as a national icon, an all but sacred text. Most Americans in the early twenty-first century probably have only a limited knowledge and understanding of what the U.S. Constitution actually says, and many undoubtedly conflate it in their minds with the Declaration of Independence. Individuals

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hold differing opinions, often radically differing opinions, about what the Constitution’s specific provisions really mean, and judges and courts interpret the Constitution differently in different generations—and often differently within the same generation. The 1787 Constitution has from time to time been formally amended. But the central fact remains that at no time since the Constitution was ratified at the end of the eighteenth century has there ever been a serious, orga nized movement to revoke it and replace it with something completely different. That one non-event in American political history is at least as significant as any event that has actually taken place. The details do not matter for our particular purposes, but the language used over the years in connection with the Constitution is telling. The language frequently—far too frequently to escape notice—is that of religious belief. As early as 1788, Benjamin Rush offered the thought that the Constitution was “as much the work of a Divine Providence as any of the miracles recorded in the Old and New Testament were the effects of a divine power,” and George Washington in his Farewell Address to the American people expressed the hope that “the Constitution may be sacredly maintained.”54 In a speech delivered before he became president, Woodrow Wilson confessed: “I have been brought up with an inveterate reverence for the text and the meaning of the Constitution of the United States.”55 Both a congressman in the 1830s and the U.S. chief justice during the 1920s were prepared to refer to the Constitution as “our Ark of Covenant.”56 President Ronald Reagan, at celebrations marking the Constitution’s two hundredth anniversary in 1987, described Americans’ feelings about it as ones of “reverence.” “It’s a human covenant, yes,” he continued, “and beyond that, a covenant with the Supreme Being to whom our Founding Fathers did constantly appeal for assistance.”57 Millions of Americans flock every year to admire the newly opened National Constitution Center in Philadelphia and also the original document itself on display at the National Archives in Washington, D.C. The two locations are national shrines, places of pilgrimage.

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Certainly nothing approaching America’s reverence for its Constitution is known anywhere else in the democratic world. Great Britain famously lacks a codified constitution. Japan’s most recent constitution dates only from 1947, Italy’s from 1948, Germany’s from 1949, France’s from 1958, Spain’s from 1978, Poland’s from 1997. India acquired a democratic constitution only in 1949. But even if the world’s other liberal constitutions were as long-lived as the American, it seems doubtful whether any of them would have acquired the American document’s hallowed status. The American Constitution acquired iconic status at a very early date, and, while other countries have all manner of iconic national symbols, almost none of them is constitutional or legal in character. The U.S. Constitution undoubtedly holds such a tight grip on the American imagination partly because of its historic associations with American prosperity and success, partly because Americans down the generations have succeeded so well in adapting it to changing circumstances, partly because important sections of it are open to such a wide variety of interpretations, but almost certainly also because early in the twenty-first century it remains exactly what it was at the end of the eighteenth century: that set of political arrangements that promises America most and divides Americans least. As a U.S. senator put it, “It’s what holds us all together.”58 The founding fathers found it extraordinarily difficult to devise a constitution for the relatively homogeneous America of the 1780s. Their successors, if they had any, might find it well-nigh impossible to devise an equally acceptable constitution for the far more diverse America of today. That is perhaps why no second constitutional convention has ever been held. The thought of what might happen if such a convention were held is daunting and even appalling. The very pillars of the temple might be brought down. Be that as it may, large portions of the 1787 Constitution still exist, not merely as icons and symbols but in the form of living political practices and institutions. The founders’ constitution would have been hard to amend in any case—the men who wrote it wanted it that way—but the great majority of American citizens have also

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never wanted to see it fundamentally altered. The Constitution remains at the heart not merely of America’s legal structure but of its political culture. The fact that the Constitution contains specific provisions, irrespective of their intrinsic merits, gives those provisions an automatic and prior claim on most Americans’ allegiance. The remainder of this book explores some of the consequences of the fact that such a large proportion of what the founding fathers drafted and signed in 1787 more than two centuries later survives as an abiding and dominant political presence. Their legacy constitutes one of the two tectonic plates on which the whole American system rests.

4 The Exaltation of the People

Attentive readers may already have noticed something strange

about the language employed in the two previous chapters. Those chapters were overwhelmingly concerned with the role that the people were to play in the new American political order, but scarcely any mention was made of democracy. Despite the subject matter of those two chapters, the words “democracy” and “democratic” were almost never used or even quoted. The main reason is simply that there was no need to make use of either of them. It was enough to discuss the role of the people in the new system without—by referring explicitly to “democracy”—raising wider issues. But there were two additional reasons. One is that the founding fathers, although they spoke frequently of democracy, seldom meant by the word what we mean by it today, and to have written about democracy, using that particular word, would merely have confused matters. Delegates to the federal convention used the term vaguely and variously to mean a system of government (“the genius of the people is in favor of it”), an attitude of mind (“the amazing violence & turbulence of the democratic spirit”), the lower house

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of a legislature (“the democratic branch”) and as a rough synonym for the people—that is, the body of electors (“the democracy”).1 To have written about democracy in the previous two chapters would have been to introduce extraneous and potentially confusing issues without gaining anything. Indeed, it might have been to lose something, because occasionally speakers at the convention—and James Madison in one of the best-known Federalist Papers—used the term “democracy” to refer, not to anything we are familiar with today, but to the kind of small-scale, face-to-face democracy, based on frequent meetings of popular assemblies, that was practiced, most famously, in ancient Athens. That was the kind of arrangement that Madison had in mind when he used the phrase “a pure democracy”—and about pure democracies of that type he was excoriating: A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the [majority’s] inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.2

But of course neither Madison nor any of the other founding fathers were advocating a pure democracy of that sort, one in which a man like Socrates, undoubtedly “an obnoxious individual,” could be condemned to death by a popular assembly. Madison was presumably trying to reassure anxious readers that, despite what some of its critics were saying, the proposed new Constitution was not a purely democratic one. The other reason for having so far avoided any mention of democracy is simply that democracy today, even more than in Madison’s day, is an exceedingly value-laden term. In the twenty-first

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century, to say of something that it is “democratic” is usually to say, automatically and unreflectively, that it is good. To say of something that it is “undemocratic” is usually to say, equally automatically and unreflectively, that it is bad. But the purpose of the last two chapters was neither to praise nor condemn. It was merely to assert, first, that the people of the United States (or at least those who could vote) were definitely to be allowed to play a role in the new American political system but also, secondly, that at the same time their role was to be strictly limited. Others can argue, if they want to, whether that made the new system democratic or undemocratic. Obviously it was both. But there is no need any longer to avoid the language of democracy, and it would be quite wrong to do so, because very soon there occurred in the United States a veritable revolution in favor of democracy, a revolution of both ideas and practice—the revolution that by itself created the other tectonic plate on which the modern American system rests. It wrought major changes in the way in which the Philadelphia Constitution operated and in the actual wording of the document itself, in the form of a number of significant constitutional amendments. It also transformed the theory and practice of government in a very large proportion of America’s increasingly large number of states. Already, long before the War of Independence and the holding of the Philadelphia convention, America had begun to emerge, uniquely in the contemporary world, as a society in which democratic ideas and practices had the potential to thrive. The framers of the 1787 Constitution knew that very well; and that specific piece of knowledge constituted one of their principal reasons for wanting to prevent the people—“the democracy”—from becoming the dominant force in the new government. The framers’ vision of the new political order—restrained, moderate and essentially patrician—was very different from the more radical vision of the democrats, those politicians, publicists and voters, an increasingly large number, who from an early date began to dominate the style and tone of local, state and eventually national politics.

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It is easy to forget what a singular place early America was. No other place on earth was quite like it; most places were not remotely like it. For one thing, white Americans—certainly not black Americans and slaves—were rich and, to a degree unknown elsewhere, they were rich in relation to each other. A social hierarchy did exist in America, of course, but by world standards it was remarkably flat, a low range of hills, not a towering mountain range. The American hierarchy was also unusually unstable: large numbers both ascended it and descended it, often at considerable speed. There was scarcely a foreign visitor who did not comment on the easygoing egalitarianism of American life, certainly as compared with what they were used to back home. Reporting from Paris as early as 1787, Thomas Jefferson observed that “Of twenty millions of people [in France] . . . there are nineteen million more wretched, more accursed in every circumstance of human existence than the most conspicuously wretched individual of the whole United States.”3 Five decades later, Alexis de Tocqueville introduced his Democracy in America with the words: “No novelty in the United States struck me more vividly during my stay there than the equality of conditions.” “Wealth,” he observed, “circulates there with incredible rapidity, and experience shows that two successive generations seldom enjoy its favors.” He was emphatic on the point: “Men [in America] are nearer equality in wealth and mental endowments . . . than in any other country of the world or in any other age of recorded history.”4 Not only were white Americans in reality more equal than people anywhere else in the world: they took pride in their egalitarian mores and made a virtue of their egalitarian outlook. No man was to be thought of as better than any other man, at least until he had proved himself to be such and quite possibly not even then. A foreign visitor to Philadelphia remarked not merely on Americans’ material prosperity but on their lack of any “feeling that they are insignificant subjects and subservient members of society.”5 Along with titles of nobility, other terms that were redolent of social superiority, such as “gentleman” and “Esquire,” fell out of favor. Plain

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“Mr.” rapidly became the preferred form of address at all levels of society. There was certainly no urge toward equality of wealth or possessions. The equality that was sought and demanded—and increasingly conceded—was equality of respect. Achievement rather than ascription marked out a man’s social status (and, by extension, his wife’s). The best man was the self-made man, the man who owed everything to his own exertions, nothing at all to a patron or other social superior. “Equality,” in the words of historian Gordon S. Wood, “was in fact the most radical and most powerful ideological force let loose in the Revolution. . . . Once invoked, the idea of equality could not be stopped, and it tore through American society and culture with awesome power.”6 In America, the possession of wealth was simultaneously the great social differentiator and the great leveler. Titles, forms of address and ascribed social status did not differentiate one American from another. The task of social differentiation was performed by wealth and wealth alone. Most Americans aspired to it, many reckoned they could achieve it, and remarkably large numbers actually did achieve it. Almost no one in America doubted that, provided a man worked hard enough and enjoyed a modicum of good luck, he could acquire substantial amounts of wealth. Long before the War of Independence, an observer of the New York scene remarked that “the only principle of life propagated among the young people is to get money, and men are only esteemed according to what they are worth—that is, the money they are possessed of.”7 Americans might be, and were, unequal in their possession of wealth; but the almost total absence in America of aristocratic norms of gentility and snobbery had the effect of rendering American citizens morally equal both in their hunger for wealth and in their hot pursuit of it. Of course, this conviction that men were morally equal might have been undermined if those who acquired wealth almost invariably clung onto it and passed it on to their children, but American experience was replete with instances— often well-publicized instances—of men falling down, or even off, the ladder of success. It has been suggested that the fi nancial ruin

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of large numbers of prominent individuals during the 1790s, including that of at least one delegate to the constitutional convention, contributed to intensifying America’s already existing egalitarian ethos.8 Unlike their brethren and sisters in most of the rest of the world, early Americans could also read and write. Literacy rates were at least as high as they were in contemporary England and far higher than in most of continental Europe. Most Americans had some access to primary education, and by the end of the eighteenth century, literacy rates among adult white males in the various United States seldom fell below 70 percent and sometimes approached 100 percent.9 Moreover, Americans not only could read; they did read. It is reckoned that Thomas Paine’s subversive mid-1770s pamphlet Common Sense found its way into perhaps 100,000 American households.10 Three or four decades later a contemporary observer calculated that, although America’s population was only half that of Great Britain, the number of newspapers circulating in the U.S. was two-thirds that of the number circulating in the mother country.11 As America’s business in the early nineteenth century increasingly became business, with even hitherto subsistence farmers selling their produce on the open market, reading ceased to be a leisure activity for millions of Americans and became a necessity of life.12 Partly because communities in early America were mostly farflung and small, partly because America at the turn of the eighteenth and nineteenth centuries was remarkably little governed (“the state,” in the European sense, scarcely existed) and partly because the institution of the cohesive, mutually supportive extended family never established itself in the United States, Americans from an early date became, to a remarkable degree, collectively self-reliant. Especially in New England and the mid-Atlantic states, they formed a myriad voluntary organizations for purposes of mutual society and support and to perform functions that in Europe were usually performed by the state. So novel was this widespread American habit of clubbing together for the com-

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mon good that Tocqueville felt constrained in Democracy in America to describe the phenomenon in detail and to explain its significance to his mostly European readers. His word for the phenomenon was “association.” “Better use has been made of association,” he wrote, “and this powerful instrument of action has been applied to more varied aims in America than anywhere else in the world.”13 The internal organization of these voluntary associations—and there were thousands of them—was participatory and non-hierarchical and, more often than not, involved a mix of people from different backgrounds and with different outlooks. In the fullness of time, organizations like these came to constitute “mobility ladders with rungs from the modest reaches of society to the national leadership. At the same time, they encouraged persons of high status or leadership rank to interact with a wide range of their fellow citizens.”14 The U.S. was almost certainly the first country anywhere in which there was established what we now call a vibrant civil society. This disposition to club together on a voluntary, non-hierarchical basis increasingly extended itself into America’s most important class of social institutions apart from the nuclear family: the Christian churches. In most of the European countries from which the American people and their ancestors had come, a single Christian denomination dominated religious life. In England, the Church of England was actually established by law. Moreover, most Christian denominations—including the Methodists in England and the Roman Catholics in Ireland and on the European continent—were both hierarchical in their formal structure and doctrinal in their approach to Christian teaching. Putting it simply, the dominant churches throughout Europe and in some of the early American colonies promoted, and usually attempted to insist upon, some form of top-down orthodoxy. In America, however, their attempts along these lines increasingly failed. Christian denominations proliferated, with existing churches splintering and new churches springing up. Pastors and preachers vied with each other to attract followers. Religious leaders and would-be

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religious leaders competed in the marketplace of religious ideas just as merchants and manufacturers competed in more earthly marketplaces. At the same time, congregations and individual believers took it upon themselves to decide not merely which faith they should to adhere to but who, if anyone, should lead whichever faith they hit upon. In post-revolutionary America, top-down orthodoxy increasingly gave way to bottom-up diversity and heterodoxy. The numerous popular religious movements, among many other things, “empowered ordinary people.”15 Early America was singular in yet another respect. It was replete, even before the Revolutionary War, with popularly elected representative institutions—institutions that played a substantial role in the conduct of government. Their precise role and importance, and the extent of their popular base, varied widely from colony to colony; but in every colony such institutions were to be found. Most were established as soon as, or very soon after, the colonies themselves were established. As early as 1681, one of the most radical of the colonies’ founders, William Penn, declared that the people of the newly established colony of Pennsylvania (named after his father) “would be allowed to shape their own laws,” and two decades later Penn even invited the colonial assembly’s members, since they did not seem to like the constitution that he had laid down for them, to write their own—which they proceeded to do.16 Pennsylvania was an extreme case, but by the middle of the eighteenth century, well before the Revolution, the popularly elected assembly had become the most powerful single branch of government in every one of the colonies. Moreover, the phrase “popularly elected” was substantially justified. By the time of the Revolution, the proportion of adult white males eligible to vote varied between roughly 40 and 50 percent in some of the older settlements, where land was relatively expensive and wages low, to around 70–80 percent in some of the newer settlements, where more men were freeholders.17 To be sure, Great Britain at the time had its own elected assembly with substantial powers—the House of Commons—but, by American standards, the size of the British electorate was risibly small.18

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Given early America’s relatively flat social structure and the egalitarian attitudes that went with it, given also the richness and variety of American civil society and given the additional fact that, even in colonial times, white male Americans had been able to vote in unprecedentedly large numbers for influential representative assemblies, it would have been quite astonishing, bordering on the miraculous, if post-revolutionary Americans had not taken it for granted that they had a God-given right to play an active part in the government of the new republic. It seemed only natural that the franchise, the right to vote for those who were to represent and govern over them, would gradually be extended to larger and larger portions of American society. That is substantially what happened, and to that extent what happened is wholly of a piece with the parallel progress toward democracy that occurred, albeit with a considerable time lag, during the nineteenth and early twentieth centuries in much of the rest of the world: in Great Britain and many other countries in northern Europe and in many parts of the British empire such as Australia, New Zealand and Canada. But, as we shall see shortly, what marked out America during those many decades, and marks out America to this day, is the absolutely central role accorded “the people” in almost all American political thought and in much, though by no means all, American political practice. It turned out that “We the people of the United States” were not merely to ordain and establish a constitution under which they would consent to be governed: they themselves were, insofar as was humanly possible, to be the government. No comparable development, in either thought or practice, took place in any other country. America in this respect stood out—and stands out still.19 The radical change in outlook that occurred uniquely in America took place mainly during the 1800s, 1810s and 1820s, during the decades that led up to the election of Andrew Jackson as president in 1828. In the very early years of the new republic, the idea that the people should rule was more a casual assumption—derived from colonial experience and the subsequent rejection of both monarchy

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and aristocracy—than a fully developed doctrine or article of faith. The character of the debates that took place between the supporters and the opponents of the proposed 1787 Constitution, between the so-called federalists and anti-federalists, is telling in this respect. Although seldom noticed, the fact is that the debates were not especially forward looking and took place within relatively narrow intellectual bounds. The anti-federalists undoubtedly reposed greater trust in the people than did the federalists. They observed that the new Constitution contained many non-democratic elements, and they did not like what they saw. They disliked the way in which the president of the United States was to be chosen and the quantity of power that he might be able to accumulate in his hands. They also disliked the way in which U.S. senators were to be chosen and the large amount of power that might in time accrue to those few individuals. They were certainly suspicious of what the new Supreme Court and the new federal judiciary might get up to. Antifederalists were similarly dismissive of the House of Representatives, the one ostensibly democratic institution built into the new governmental structure. George Mason of Virginia, one of the three delegates to the Philadelphia convention who refused to sign the Constitution, insisted that “in the House of Representatives, there is not the substance, but the shadow only of representation.”20 Richard Henry Lee, also of Virginia, dismissed the proposed House as “a mere shred or rag of representation.”21 An antifederalist essayist who signed himself Federal Farmer protested that “this federal representative branch will have but little democracy in it.”22 But what is striking about the anti-federalists’ objections to the Constitution is that they were not founded either on any great faith in human nature or on any particularly high regard for “the people” as such. Nowhere in the anti-federalists’ numerous essays, letters and speeches are the people either glorified in moral terms or credited with preternatural sagacity. There is scarcely any mention in any of the anti-federalist papers of the desirability of em-

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powering the people beyond according them the right to elect—as in America they had long enjoyed the right of electing—some of those, possibly a majority of those, who were to be placed in authority over them. The anti-federalists’ many objections to the Constitution were based instead, not on the belief that the people were especially virtuous or wise, but on the belief that no one was especially virtuous or wise, or at least that no one, and certainly no whole section of society, could absolutely be counted upon to be both virtuous and wise. In other words, most of the anti-federalists were not so much pro-democrats and populists as anti-elitists and pluralists. Their central concern was to prevent a self-interested, socially privileged and politically agile minority from lording it over an equally self-interested but less socially privileged and less politically agile majority. It was a concern they shared, without perhaps realizing it, with a large proportion of the delegates to the Philadelphia convention, not least James Madison. They also shared with Madison the belief that interest must always check interest and faction must always check faction. Power must be dispersed. The anti-federalists’ worry about the new Constitution was that it concentrated power and that, the world being what it was, any such concentration of power would inevitably benefit one section of society to the detriment of others and most probably the wealthy and privileged section of society to the detriment of everybody else. The anti-federalists feared tyranny and aristocratic dominance more than they hoped for the creation of a people-inspired utopia. Someone calling himself Brutus put the point succinctly. He said of the proposed new Constitution: “It will literally be a government in the hands of the few to oppress and plunder the many.”23 Someone calling himself Centinel was less succinct but equally pungent: “From this investigation into the orga nization of this [proposed federal] government, it appears that it is devoid of all responsibility or accountability to the great body of the people, and that so far from being a regular balanced government, it would be in practice a permanent ARISTOCRACY.”24

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Not merely fearing government by a permanent aristocracy but conscious also that society was composed of a wide variety of potentially conflicting interests, the anti-federalists were also anxious that the democratic elements—indeed all of the elements—in the new constitutional structure should reflect and embody the full range of those interests. They wanted the national legislature to be much larger than the one that was being proposed—that is, to consist of far more members than the founding fathers were proposing—partly so that every elected person could remain in constant touch with what would be, under that rubric, his smaller number of individual constituents, but partly also so that a wider variety of interests, occupations and political opinions could be represented in the new government, especially in the legislature. Many anti-federalists objected to the very idea of creating a strong, centralized national government because, in their view, such a government, being further removed from the people than the existing state governments, would be more likely to fall into the hands of an inevitably pernicious America-wide oligarchy. In the anti-federalists’ eyes, liberty was local. It was because they were so concerned about the future of liberty in an America under a strong central government that they insisted upon, and eventually achieved, the incorporation into the U.S. Constitution, soon after it was ratified, of a bill of rights. If liberty could not be local, then the protection of it should be made constitutionally binding. During the latter part of 1787 and the first half of 1788, the political battles over ratification between federalists and antifederalists were passionately fought, but the important point to note is that to a remarkable degree they were fought on the same philosophical ground. Both sides wished to maintain the union and to achieve a government that was effective but at the same time to achieve a free government and one limited in its powers. They differed passionately about means but scarcely at all about ends. That was one reason why the federalists, including Madison, so readily accepted the incorporation of a bill of rights into the new Constitution and the anti-federalists so readily accepted the

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new Constitution as a whole once it had been ratified. The German historian Willi Paul Adams appears to have been among the first to remark on the almost total absence from America’s constitutional debates of any reference to the ideas of Jean-Jacques Rousseau, the French philosopher who maintained that the mass of the people really should rule, that untrammeled, unlimited power should be placed unreservedly in the people’s hands. Even the most radical anti-federalists, let alone the federalists themselves, never went anything like that far. It never even occurred to them to them that they might. Dogs that fail to bark are significant dogs, and Rousseau was a dog that, at least during the ratification debates, never barked.25 That was the position at the end of the eighteenth century. Almost all American politicians and political thinkers wanted a national government founded on the consent of the people, and they wanted the choice of those who would constitute the government to lie to some significant extent in the hands of the people; but at the same time they also wanted the government’s powers to be circumscribed, so that no one, not even the people, could infringe on the people’s liberties. Unlike in Europe, in America “ ‘the people’ were all there were.”26 But the people were in no way glorified or deified, and the vast majority of Americans still took it for granted that the people would elect their governments, or at least significant parts of them, and that their governments would then proceed to govern. There would be a rough and ready division of labor. By world standards, the acceptance by most Americans of those ideas already constituted an intellectual revolution. However, as we can now see, that revolution, however remarkable, was far from being over. In the years subsequent to the ratification of the Constitution, there occurred a phenomenon that is probably best described as “the exaltation of the people.” The idea quickly spread across the United States that ordinary people, individually and collectively, were founts of great wisdom and that their views should therefore be listened to with great respect and—in most cases if not quite all—be allowed to be determinative.

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The people were now portrayed as constituting not merely “the demos” or “the plebs” but the brilliant sun located, or that ought to be located, at the heart of a strictly Ptolemaic political universe. As early as 1809, the new spirit was captured by an enthusiastic Baptist minister named Elias Smith: The government adopted here is a DEMOCRACY. It is well for us to understand this word, so much ridiculed by the international enemies of our beloved country. The word DEMOCRACY is formed of two Greek words, one signifies the people, and the other the government, which is in the people. . . . My Friends, let us never be ashamed of DEMOCRACY!27

That language, and the thoughts deeply embedded within that language, was new. Spoken in that tone of voice, it was new even in America. The exaltation of the people was a natural development, if an unusual one. Following the Revolution, there was no longer any monarchy to exalt, and by the time Andrew Jackson was elected president, the traditional American elites, insofar as any had ever existed, had fled to Canada, or back to Britain, or had lost their credibility in other ways. Apart from God, there was no one in particular to look up to. A retired U.S. senator of the time noted that, whereas in a country like Britain there were three estates, monarchy, aristocracy and commons, “here there is but one estate— the people.”28 The people in question recognized, of course, that there were, in America as elsewhere, men and women of wealth and high social standing; but they did not attribute to them any special virtue. On the contrary, the wealthy were in permanent danger of being despised if they did not go on working hard to earn their keep. Americans tended to assume that no one was especially disinterested and that everyone had their own interests to pursue—and that they would pursue them aggressively. The more superior someone was, the more likely he was to abuse his superior position. “The fact is,” a Philadelphian wrote to a friend

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in Italy, “that superior talents actually excite distrust, and the experience of the world perhaps does not encourage the people to trust men of genius.”29 As usual, that astute visitor from France, Alexis de Tocqueville, sniffed the prevailing wind: The nearer men are to a common level of uniformity, the less are they inclined to believe blindly in any man or any class. But they are readier to trust the mass, and public opinion becomes more and more mistress of the world. . . . In times of equality men, being so like each other, have no confidence in others, but this same likeness leads them to place almost unlimited confidence in the judgment of the public. For they think it not unreasonable that, all having the same means of knowledge, truth will be found on the side of the majority.30

Americans had to place their trust somewhere. As they could not place it anywhere, they placed it everywhere: in the collective judgment of the people. The people and public opinion became a kind of surrogate elite. One did not defer to one’s superiors. One deferred to one’s fellows. This exaltation of the people, this belief in the people’s collective wisdom, became an article of national faith—for millions of Americans, including American politicians, an internalized norm. As time went on, more and more political leaders were not merely currying favor with potential voters when they lauded the good sense of the American people; they genuinely believed that the people of America were solid, sensible and of sound judgment, that there was something about them that bordered on the holy. Whereas democracy for most Europeans, even Europeans who were in favor of it, was little more than a political device, for most Americans it rapidly became, and remains, a matter of almost religious belief. From at least the time of Andrew Jackson, no American politician would have dared to say, or would probably have allowed himself even to think, as Winston Churchill did, that “democracy is the worst form of

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government except all those other forms that have been tried from time to time.”31 To say any such thing in the U.S. would border on heresy and be liable to be punished as such. For most Americans, democracy—rule by the people—had by the middle of the nineteenth century become nothing less than a “creedal passion.”32 The long-standing rhetoric of American politics testifies to the depth of this passion. It cannot be replicated in other liberal democracies (except in a few places, mostly in Latin America, where North American rhetoric has caught on). The final cadence of Lincoln’s Gettysburg Address—“that government of the people, by the people, and for the people, shall not perish from the earth”—is only the most famous example. Andrew Jackson acknowledged that the people might err occasionally through weakness; “but,” he added, “in a community so enlightened and patriotic as the people of the United States argument will soon make them sensible of their errors.”33 On another occasion, he was even more emphatic: “Never for a moment believe that the great body of the citizens of any State or States can deliberately intend to do wrong.”34 Jackson’s opponents in the Whig Party were initially contemptuous of his populist rhetoric, but by the time Jackson left office they, too, “were ardent champions of the common man.”35 In later generations, the leaders of all parties paid homage—in the great majority of cases, unaffected homage—to the American people’s wisdom and their right to determine the direction of the nation’s affairs. Predictably, William Jennings Bryan was among the most forthright: I assert that the people of the United States . . . have sufficient patriotism and sufficient intelligence to sit in judgment on every question which has arisen or which will arise, no matter how long our government will endure. The great political questions are in their final analysis great moral questions, and it requires no extended experience in the handling of money to enable a man to tell right from wrong.36

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But even as business oriented a president as William McKinley was clear that in his view the people were, and ought to be, the ultimate arbiters. In his first inaugural address, he called on Congress to reconvene in order to put the nation’s finances on a sound footing. He denied that an early meeting of Congress would be “dangerous to our general business interests”: Its members are the agents of the people, and their presence at the seat of Government in the execution of the sovereign will should not operate as an injury, but a benefit. There could be no better time to put the Government upon a sound financial and economic basis than now. The people have only recently voted that this should be done, and nothing is more binding upon the agents of their will than the obligation of immediate action.37

During his later, more progressive phase, Theodore Roosevelt, McKinley’s successor in the presidency, was adamant that the American people had the right to govern themselves: “I believe that the majority of the plain people of the United States will, day in and day out, make fewer mistakes in governing themselves than any smaller class or body of men, no matter what their training, will make in trying to govern them.”38 For his part, Woodrow Wilson, initially a constitutional conservative and a long-standing admirer of Great Britain’s more hierarchical political system, eventually came round to the view that the American people, perhaps uniquely, could be relied upon. Campaigning for the presidency in 1912, he insisted that “The machinery of political control must be put in the hands of the people . . . for the purpose of recovering what seems to have been lost—their right to exercise a free and constant choice in the management of their own affairs.”39 The Democratic Party’s aim, he declared, was “to set up a government in the world where the average man, the plain man, the poor man had a voice equal to the voice of anybody else in the settlement of the common affairs, an ideal never before realized in the history of the world.” 40

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To repeat: the use of the discourse of people power and democracy in ongoing, day-to-day, year-to-year, decade-to-decade political life is all but unique to the United States. It can occasionally be heard elsewhere in the liberal democratic world, but only very occasionally. It could be argued, and has been argued, that this belief in the wisdom and greatness of the people and in the people’s ultimate right to rule is one of the most important beliefs binding together an otherwise diverse and in many ways deeply divided nation. The fact that politicians have been quarreling over how to implement a shared set of democratic ideals may well have “helped Americans to avoid the terrors to body and mind that have characterized the hegemony of revolutionary ideologies in other nations: fascism, Nazism, Leninism, Maoism and the type of Islam that currently rules Iran.”41 Be that as it may, once the idea took hold that the people and the people alone were entitled to rule, the idea developed a dynamic of its own, a dynamic that, once again, has not been fully replicated in any other democratic country. If the people were to be in power in a truly effective way, they obviously needed to have at their disposal a full range of institutions that would enable them to exercise that power. The vote was clearly one such institution, and pressure to extend the franchise—even to women, the propertyless and black people—ultimately proved inexorable. But in the eyes of more and more Americans, merely voting every once in a while to elect presidents, governors and legislators was not enough. People needed to be able to control the actions of the people they elected, and they needed to be able to decide some important issues entirely on their own. And the institutions of democracy needed to be complemented by an equally democratic political culture. Democracy in America was not to be a mere tent pole. It was to be a tree, with many branches, deep roots and luxuriant foliage. The idea took hold quite early that representatives and representative institutions were a mere expedient, a second-best, a substitute for a gathering together in one place of the whole people. William Penn of Pennsylvania claimed to have unearthed records

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of a long-forgotten meeting of the entire English people that was still summoned from time to time under King Ina in the eighth century. It consisted of the “generality of the Free-men of the Kingdom; for all might come that pleased. . . . But . . . as the number of Free-men encreased, there was a Necessity for a Representative.” 42 Much of the business of colonial America, and not just in New England, was in fact conducted by meetings of all the inhabitants—or at least of all the inhabitants who cared to turn up—in the myriad towns and villages dotted along the eastern seaboard. At the constitutional convention of 1787, no one dissented when William Paterson of New Jersey maintained that the true principle of representations was “an expedient by which an assembly of certain individuals chosen by the people is substituted in place of the inconvenient meeting of the people themselves.”43 In the first Congress under the new Constitution, John Page of Virginia maintained that “If it were consistent with the peace and tranquillity of the inhabitants, every freeman would have a right to come and give his vote.”44 However, even in early America there was no way in which— except in very small towns and villages—every free man could come and give his vote. Genuine town-meeting government survived only in some parts of New England. It followed that, if the people were to be able to exert their authority, they had, at the very least, to be able to issue binding instructions to those whom they elected to represent them. Again, there were pre-revolutionary precedents. “The town of Boston issued instructions to its representatives in the Massachusetts assembly on at least eighteen occasions before 1689.”45 Instructions such as these were often couched in the most general terms, and they were seldom enforced. In most cases, they probably only instructed the representatives in question to do what they would have done in any event. But they were an early, concrete expression of the idea that the popular will should prevail. Following the War of Independence, three of the first eleven state constitutions, those of Massachusetts, Pennsylvania and North Carolina, explicitly granted citizens the right to issue instructions to the men

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they elected. An unsuccessful move was even made in Congress in 1789 to write into the first amendment to the Constitution a declaration of voters’ “right . . . to instruct their representatives.” 46 Decades later, the ever-observant Tocqueville noted that: A custom is spreading more and more in the United States which will end by making the guarantees of representative government vain; it frequently happens that the electors, when they nominate a deputy, lay down a plan of conduct for him and impose some positive obligations on him which he cannot avoid. It is as if . . . the majority were deliberating in the market-place.47

At the same time, although no one can be certain, it seems likely that elected representatives in the United States quite quickly developed, in their own minds, a conception of their role different from that of their counterparts in the mother country, in the rest of the English-speaking world and on the European continent. Certainly in Great Britain, members of Parliament prided themselves—or said they did—on their independence of those who elected them. They believed—or said they believed—that, once elected, their role was to govern and legislate in what they considered to be the best interests of the nation, largely irrespective of the views of their constituents. In the famous and oft-quoted words of Edmund Burke to the electors of Bristol, “Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”48 In contrast, it seems likely that from an early date, large numbers of elected representatives in the United States, while they may have been conscious of owing a wider duty to their state and to America as a whole, nevertheless came to believe that they owed a special duty to their constituents and, more specifically, to the stated views, opinions and preferences of those constituents. In other words, large numbers of them were ready to see themselves, not primarily as trustees of their constituents’ interests but as their constituents’ agents or delegates, as having been elected to speak and vote

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as their constituents would have spoken and voted had they been able personally to be present.49 The historian Edmund S. Morgan notes wryly that even in colonial times “Representatives in American assemblies seem to have been less jealous than their British counterparts of [their] exclusive right to speak for the people” and that, following the Revolution, the new state governments “would be run by representatives, and representatives of the American kind, representatives who knew their places as agents of the people who chose them.50 But no self-respecting citizen of America could be confident that his instructions, merely as a consequence of having been issued, would be obeyed or that his elected representatives would feel morally bound to speak and vote in accordance with their views and opinions rather than his own. The citizen therefore needed reassurance that, if his representatives did not act as, in effect, his agents or delegates, he could remove them from office at short notice. He needed that sanction. One way of making that sanction effective would be by ensuring that representatives—if, for strictly practical reasons there had to be representatives—were elected for exceedingly short terms of office and were therefore subject to reelection at exceedingly short intervals. In that way, representatives could be deterred, if not wholly prevented, from ignoring their constituents’ wishes. Before the War of Independence, annual elections to colonial assemblies were commonplace; and, of the first twenty-five constitutions adopted by the new states of the United States, all but two provided for annual elections to the lower house of the state legislature. Many also provided for annual elections to the upper house, if there was one.51 The people were indeed, as Oliver Ellsworth said at the Philadelphia convention, “fond of frequent elections.”52 The delegates to the convention believed, probably rightly, that proposing a term in excess of two years for elections to the federal House of Representatives would have endangered the Constitution’s ratification. Frequent elections were one way of maximizing the chances that representatives would comply with their electors’ wishes. Another

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way, potentially at least, was to enable some sufficient number of electors not to wait patiently for the next normal round of elections but to demand the “recall” of the offending officeholder or officeholders. The person or persons in question could be summarily evicted from office, or they could be forced immediately to run for reelection if they wanted to run. None of the original state constitutions provided for the recall of executive or legislative officials, though “a few towns in Massachusetts . . . favored such recall, and one of them wanted to include in the [state’s] bill of rights that all public officials could be recalled at any time.”53 No one, however, promoted the idea at the 1787 constitutional convention, and for the time being even the most ardent advocates of people power seemed content with, by world standards, relatively short executive and legislative terms. (When the Philadelphia convention met, British members of Parliament enjoyed seven-year terms, and the length of their terms was not reduced to five years—where it still remains—until more than another century had passed. 54) From the point of view of ardent democrats, short terms and frequent elections, as well as increasing voters’ influence over their representatives, had an additional advantage: short terms and frequent elections increased the chances that there would be rapid rotation in office, with elected officeholders remaining in post for only a few years, perhaps for no more than a year or two. The same effect, that of rapid rotation, would be achieved by establishing legally binding term limits—that is, limits on the number of times the same individual could be returned to the same office. Democrats believed that power tended to corrupt all those who wielded it. They also believed that rapid rotation in office would inhibit, if not totally prevent, governing oligarchies from forming. Seeking the closest possible communion between the people and those they elected to office, democrats believed as well that elected officeholders should from time to time be forced “to return to the people”—should, so to speak, be reduced to the ranks. Above all, the view, already in the air in early America, became increasingly

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widespread as time went on that the great majority of men were quite capable of holding public office and that all men should therefore be given equal—and numerous—opportunities of taking their turn in office. The pre-1787 Articles of Confederation imposed term limits on members of the states’ delegations, and a majority of the early state constitutions also imposed term limits of one kind or another on elective officeholders. In Maryland, for instance, the state governor served initially for only a single year; he was nevertheless eligible to be reelected twice—that is, he could remain in office for three consecutive years—but he was then barred from reelection for another four years. In Delaware, state senators served for three years but were then only eligible for reelection after a gap of another three years. Pennsylvania was alone in imposing term limits on the members of the lower house of its legislature.55 The founding fathers at Philadelphia, less enamored of the idea of rapid rotation in office, were well aware that term limits for legislators were available as an option but at no point showed any interest in imposing them. If representatives, however elected and whatever the length of their terms, were to function primarily as the agents of those who elected them, then there was everything to be said, in addition, for the idea that they ought—in their outlooks, occupations and social standing—to resemble their constituents as closely as possible. A representative body should mirror the whole body of people it claimed to represent. A larger and larger number of Americans came to believe that “given the variety of competing interests [in society] and the fact that all people had interests, the only way for a person to be fairly and accurately represented in government was to have someone like himself with his same interests speak for him; no one else could be trusted to do so.”56 As we have already seen, the anti-federalists took this view and based their strong preference for a federal House of Representatives larger than the one proposed by the Philadelphia convention on the ground that “Fair representation . . . should be so regulated that every order of men in the community, according to the common course of elections, can

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have a share in it.”57 The anti-federalists did not immediately get their way, and no one suggested that demographic or other quotas should be imposed on the membership of elective bodies, but recruitment to all levels of government in America quite rapidly became far more variegated and socially egalitarian than it had been in pre-revolutionary days. The levels of government in question included the federal government, and, although Andrew Jackson as president did not bring about a revolution in the personnel of the federal government quite as wholesale as both his admirers and his critics maintained, he did advance in robust language the idea that rotation in office, including appointive office, constituted a “leading principle in the Republican creed.”58 In his first annual message to Congress in 1829, he asserted boldly: The duties of all public offices are, or at least admit of being made, so plain and simple that men of intelligence may readily qualify themselves for their performance, and I can not but believe that more is lost by the long continuance of men in office than is generally to be gained by their experience. . . . In a country where offices are created solely for the benefit of the people no man has any more intrinsic right to official station than another. 59

Jackson neglected to say whether “the duties of all public offices” included, in his opinion, the duties of the presidency; but certainly presidential candidates in the ensuing decades often claimed to have been born in a log cabin, to have been weaned on hard cider and/or to have split rails as a youth. (A few of them, notably Abraham Lincoln, actually had.) Democracy, whatever else it meant, meant elections, and it was by no means obvious that only members of legislative assemblies should be elected. Why should the people’s choice be so restricted? Why should not the people themselves elect public officeholders of all kinds? The founding fathers at Philadelphia debated at length how members of Congress should be elected

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and how the president and vice president should be elected; but they never discussed—and probably never even dreamt of discussing— whether, for example, the secretary of the treasury or the secretary of state should be elected. They certainly never contemplated the possibility that the people might elect members of the judicial branch. But here, too, the climate of opinion changed radically during the nineteenth century. As early as the 1830s, Alexis de Tocqueville maintained that lawyers in their role as judges acted as a desirable counterbalance to democracy in the United States and expressed his horror that the authority of judges in many American jurisdictions was being diminished and also, to his amazement, that “Under some [state] constitutions the judges are elected and subject to frequent reelection.”60 Had Tocqueville lived longer, he would have been even more horrified and amazed. The election of judges seemed to imply that judges, along with all other elective officeholders, should be seen, and should see themselves, as no more than the people’s agents. Although elections in the usual meaning of that word were essential to Americans’ understanding of democracy, they were increasingly regarded as being, by themselves, insufficient. If people power was to be effective, more was needed. Among other things, the people needed to be able to take the initiative in making any laws that they desired, and they also needed to be able to veto laws that their legislators had, without their full agreement, seen fit, wrongly, to enact. In other words, the people needed to have the means of bypassing and overruling their representatives even if they, the people, had freely elected those same representatives. Especially during the so-called progressive era, at the turn of the nineteenth and twentieth centuries, pressure mounted for the introduction of the popular initiative and referendum. Most of the measures for the initiative and referendum adopted during the progressive era were prompted by popular distaste for the giant corporations, monopolies, cartels and trusts that allegedly controlled not only much of the American economy at the turn of the last century but much of American politics and government as

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well. In the colorful language of a populist newspaper in Kansas, published in 1895: We propose the initiative and referendum as a means of wrestling [sic] from a handful of pirates, gamblers and corporation attorneys the power they now exercise without question to determine the policy and conduct of public affairs for purposes of plunder, and of restoring the power to the masses of the people where it rightfully belongs.61

But, although the central impulse was economic, the demand for the initiative and referendum accorded perfectly with prevailing democratic sentiments: The solution to the perennial problem of checking the actions of legislative assemblies seemed . . . simple: deprive legislatures of the authority to enact laws benefiting special interests and restore the power of the people themselves. The axiom that the people would never act against their own interests formed a cornerstone of the convictions of reformers in the nineteenth and early twentieth centuries. The people as a political entity were incorruptible, a force of rectitude and honesty that could be relied upon.62

Thus were the people exalted. It could be argued, however, and it was argued, that the tree of democracy had not yet reached its full height. The people could vote at periodic elections for one or other of the candidates placed before them, but they could not choose the candidates themselves. They had to be content with choosing among those they were offered by the political parties at their various nominating conventions; and, just as the monopolies and trusts controlled large swathes of the economy, so party machines allegedly controlled the nomination of candidates for office, thereby controlling, in effect, the entire democratic process. Pressure grew for the introduction of what were called, somewhat obscurely, “direct primaries”—that is, elections in which ordinary voters, not the parties’ managers, de-

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cided which candidates for office they wanted to see run. The case for the direct primary was put forcefully by Albert J. Beveridge, a Republican senator of progressive leanings, during the 1906 election campaign: The people have a right to elect whom they please to any office. But the people cannot elect whom they please because they must vote, not for candidates the people name, but for candidates conventions name. And sometimes these candidates—those named by conventions—are selected by one or two men who manipulate conventions. Consider Quay of Pennsylvania, or Platt of New York, or bosses anywhere. Let the people really govern, not govern in pretense, but govern in reality.63

The people should “govern in reality.” That was the single most powerful theme in American political discourse from early in the nineteenth century onward. Arguably, it has been the single most powerful theme ever since. An additional point is worth making. If the people were to govern in reality, then they should be able to do just that: to take whatever decisions they collectively believed to be in the national interest or, more bluntly, to take whatever decisions they felt like taking and wanted to take. There was, on the face of it, to be no check on the people’s sovereign will. Tocqueville reverted to this theme more than once in Democracy in America: In America the people are a master who must be indulged to the utmost possible limits. The absolute sovereignty of the will of the majority is the essence of democratic government, for in democracies there is nothing outside the majority capable of resisting it. The Americans believe that in each state supreme power should emanate directly from the people, but once this power has been constituted, they can hardly conceive any limits to it. They freely recognize that it has the right to do anything.

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[The] majority in the United States has immense actual power and a power of opinion which is almost as great. When once its mind is made up on any question, there are . . . no obstacles which can retard, much less halt, its progress and give it time to hear the wails of those it crushes as it passes. The consequences of this state of affairs are fate-laden and dangerous for the future.64

If that was what a foreign traveler thought about the almost physical power of democratic ideas and practices in America, it is easy to imagine what the founding fathers would have thought of it—and what those who survived into the nineteenth century actually did think of it. A large proportion of them were aghast, as were many conservative-minded Americans throughout the next hundred years and more. George Washington at the end of his life had lost what little faith in democracy he had ever had. In his view, extreme partisanship had destroyed the influence of character in politics. Members of a political party, he wrote, could “set up a broomstick” as their candidate, call it “a true son of Liberty” or a “Democrat” or “any other epithet that will suit their purpose,” and the broomstick would still “command their votes in toto!”65 John Jay, who would probably have written more of the Federalist Papers had he not been seriously ill, observed acidly that the “mass of men are neither wise nor good.”66 Gouverneur Morris, no friend of democracy at the time of the Philadelphia convention, was still railing against it a quarter of a century later. He denounced what he called “the democracy” as “savage and wild”: “Thou who wouldst bring down the virtuous and wise to thy level of folly and guilt! Thou child of squinting envy and self-tormenting spleen! Thou persecutor of the great and good!”67 Such sentiments by no means died out with the deaths of the founding fathers. The inauguration of Andrew Jackson as president was too much for Supreme Court Justice Joseph Story. He felt obliged to attend Jackson’s swearing in and the reception that followed, but he was otherwise in despair: “The reign of KING MOB

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seemed triumphant.”68 As late as 1912, a former U.S. senator, Thomas Robert Bard of California, fulminated against the initiative and referendum on the ground that they would do nothing more than empower “the ignorant, irresponsible, unthinking, prejudiced, and vicious classes” to enact legislation in their own selfish interests.69 Another former senator, Elihu Root of New York, who had also served as Theodore Roosevelt’s secretary of state, was equally emphatic. “The forces of evil,” he maintained, “are as hard to control now as they always have been.” And he was clear that an unchecked and unenlightened democracy was one of the principal sources of evil. “An ignorant democracy,” he wrote, “leads directly to war.”70 President Nicholas Murray Butler of Columbia University feared that the crowd “with its well marked mental and moral peculiarities” would undoubtedly be led by demagogues with their “hungry cries” and that the inevitable outcome would be chaos and disorder.71 But the telling thing about the above quotations—and the dozens of similar expressions of opinion that could have been quoted—is that almost all of them are drawn either from private correspondence or from the speeches and other public pronouncements of retired politicians or those who had never been involved in politics. No one running for elective office in the U.S. from about the 1820s onward would have dreamt of expressing such sentiments in public; they would not have dared to. Democracy had become a totem, expressions of dubiety about democracy a taboo. As Arthur Schlesinger Jr. put it in his classic The Age of Jackson, by the time Andrew Jackson left office no serious politician could suggest publicly that wealth, property or any form of ascribed status should be given a privileged place in the political order: “No politician could espouse such ideas. No populace would submit to them. Not only were they dead, but the corpses were fatal to the touch.”72 The combined exaltation of the people and democracy that took place in the United States during the nineteenth century was no matter of mere rhetoric, of empty slogans and words. It had

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profound consequences. As we shall see in the next chapter, almost every major change that has taken place in the American constitutional order since the era of the founding fathers has taken America— or, more precisely, has been intended to take America—in a more democratic direction, a far more democratic direction than the founding fathers ever desired or intended.

5 The People Move Upstairs

As we saw in Chapter 3, the constitution that the founding fa-

thers drafted in Philadelphia during the summer of 1787 allotted the American people a large room, but only one room, in the house of power—and it was a downstairs room. The people would decide who occupied that room, but they would not decide, at least not directly, who would occupy any of the other rooms in the new structure: the Senate, the presidency and the Supreme Court. The people were to be given a place, but, as we saw earlier, they were to be kept in their place. The story of American constitutional development during the succeeding two centuries is very largely the story of how the people moved upstairs and came to determine who occupied many, if not quite all, of the other rooms in the house of power. It is also the story of how the Constitution of the United States and the constitutions of most of its constituent states began radically to diverge. The new Constitution guaranteed to every state “a Republican Form of Government,” but it said not a word about what specific form that “republican government” should take.

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There was, however, one important respect in which developments at the federal level and developments at the level of the individual states did not diverge—because they could not. Unable to agree on who should be able to vote in elections to the House of Representatives, and unwilling even to debate the issue at any length, the framers of the Philadelphia Constitution had simply fudged it. They had left the matter in the hands of the individual states. Article I, Section 2 of the new U.S. Constitution stated merely that for purposes of elections to the federal House of Representatives “the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislatures.” That meant not only that the size and composition of the eligible electorate was likely to vary from state to state but that the people entitled to vote for members of the most numerous branch of their own state legislature and the people entitled to vote for members of the federal House of Representatives would be the same people. Any extension of the right to vote in any state was thus ipso facto an extension of the federal franchise. By the same token, any restriction on the right to vote in any state was ipso facto a restriction on the right to vote for House members. Most of the delegates to the Philadelphia convention clearly assumed that the several states would, by and large, retain whatever provisions they currently possessed regarding the franchise, meaning that in practice the right to vote in federal elections would normally be restricted to property owners, even though the amount of property that individuals were required to own in some states might be quite small. Although not everyone present agreed (and Madison uncharacteristically spoke on both sides of the question at the same time), John Dickinson of Delaware probably spoke for the majority when he applauded “the tendency of vesting the right of suffrage [only] in the freeholders of the Country”: “He considered them as the best guardians of liberty; And the restriction of the right to them as a necessary defence against the dangerous influence of those multitudes without property & without principle with which our Country, like all others, will in time abound.”1

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John Mercer of Maryland similarly, and in robust language, advocated restrictions on the franchise: “The people can not know & judge of the characters of Candidates. The worst possible choice will be made.”2 But it was not to be. The franchise was not to be thus restricted. In part, the pressures greatly to extend the franchise were mundane in origin. As America’s economy grew and diversified, more and more white males came to own little or no property and to pay little or nothing in the way of taxes; and those same white males increasingly made good their insistence on being added to the electoral rolls. In particular, simple justice seemed to dictate that men who served in the U.S. Army or in their own state’s militia should be enfranchised. Prudence likewise suggested that, unless such men were given the vote, they would agree only reluctantly, or not at all, to serve in the armed forces: why should they endure hardships and endanger their lives in the ser vice of a government that they had not been allowed to play any part in electing? In some Southern states, political leaders, even staunch conservatives, were prepared to give the vote to white males in the interests of creating strong whites-only militias capable of quelling any slave revolts that might occur. Other states, newly admitted to the Union, enacted liberal voting laws as a means of encouraging migrants from other parts of the country to settle there. It frequently happened that the party or faction currently in power in a state extended the franchise simply in order to increase its chances of winning the next election. But underlying all of these mundane considerations was Americans’ increasing disposition, described in the last chapter, to embrace the ideas and ideals of democracy. Not long before, the question had often been asked why any particular individuals should be given the right to vote. Now, from at least the 1820s onward, the question typically asked was why those same individuals should not be given the right to vote. “The ideological spectrum had shifted,” its center point moving in the direction of democracy, a fact “reflected not only in the substance but in the emphases, tones, and language

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of . . . debates.”3 A delegate to a state constitutional convention in Massachusetts duly paid homage to the framers of the federal Constitution but pointed out that unfortunately they “retained a small relic of ancient prejudices,” which it was time to be “rid of.” 4 A young New York lawyer at his own state’s constitutional convention pointed out that social conditions had changed: “without the least derogation from the wisdom of the . . . framers,” it had to be understood that their preference for property qualifications came in response to “circumstances which then influenced them, but which no longer ought to have weight.”5 By no means all of those who advocated extensions of the franchise argued that the whole of mankind had an unbounded natural or moral right to vote— only a minority went that far—but most of them did maintain that giving most or all adult males the right to vote would secure their support for the existing constitutional system. They also maintained that restricting the franchise to property owners or taxpayers was in any case arbitrary and unjust. It made no sense. A New Jersey pamphleteer insisted early on that it was simply an irrational prejudice, unsupported by any evidence, to claim that the ownership of “fifty pounds clear estate” made someone “more a man or citizen,” or “wiser than his neighbor who has but ten pounds,” or “more honest.”6 Long before the Civil War, the presumption was well established that, unless there were overwhelming arguments to the contrary, all adult white males should legally be entitled to vote. The consequences of this line of thinking, cumulating over several decades, were spectacular—and distinguished the United States from almost every other country in the world, including those with otherwise relatively liberal forms of government.7 Property qualifications in the U.S. fell away, beginning with Delaware in 1792 and ending for all practical purposes with North Carolina in the mid-1850s. Significantly, none of the new states admitted to the Union after 1790 included property qualifications among the suffrage requirements contained in their constitutions. Requirements that voters must be taxpayers also died a death, gradual but

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inexorable. By the time of the Civil War, almost no states or municipalities insisted that voters must also be taxpayers. The states of Massachusetts, unsurprisingly in view of its patrician history, and Pennsylvania, perhaps more surprisingly in view of its more democratic past, were among the last to succumb. By 1860, if you were an adult male in the U.S., and if you had the good luck to be white, you almost certainly had the right to vote. If you did not, you were unlucky. Of almost no other country could that have been said at that time. Of course, as elsewhere, if you were female or a member of a widely stigmatized out-group, matters were different. “The people” in the U.S. meant, in practice, white men. They and only they— considerably less than half the total adult population—constituted the demos for political purposes. Neither the rhetoric nor the practice of democracy extended either to women or to the overwhelming majority of black people; and, although the U.S. was typical in effectively excluding women from political life, it was unusual, because of its unusual history, in excluding millions of both men and women merely on account of their color or because, until after the Civil War, they were chattel slaves. A delegate to the 1850 Indiana constitutional convention probably spoke for the great majority of white males all over America when, in the course of a debate on a proposal to introduce “universal suffrage” in his state, he made it perfectly clear what he understood by that term: According to our general understanding of the right of universal suffrage, I have no objection . . . but if it be the intention of the mover of the resolution to extend the right of suffrage to females and negroes, I am against it. “All free white male citizens over the age of twenty-one years,”—I understand this language to be the mea sure of universal suffrage.8

Indeed, the decades before the Civil War saw large numbers of black Americans, even free black Americans, deprived of the right to vote in states where they had once possessed it and denied it

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from the beginning in federal territories and newly formed states where they had never possessed it. By 1855, only five states, all in New England, allowed free black men to vote on the same basis as whites, and those states contained only 4 percent of the country’s free black population.9 Following the Civil War, and despite the ratification of the fifteenth amendment to the Constitution, declaring that “The right of citizens of the United States shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude,” millions of black Americans, all of them now free, were still effectively disfranchised. If they could not be denied the right to vote on account of their race or color, they could certainly be denied it on other grounds and by other means. By the turn of the twentieth century, almost no black people in the states of the former Confederacy, where the great majority of black Americans lived, were both legally entitled to vote and able to do so in practice. Louisiana was typical. As late as 1896, more than 130,000 black people were registered to vote in that state. Only eight years later, in 1904, that figure had dropped to a derisory 1,342—and a majority even of them were probably too frightened to go to the polls.10 Another seven decades were to elapse before a combination of massive black migration to the North and the passage of the Voting Rights Act of 1965 gave the majority of black people in America both the legal right to vote and the actual ability to do so. During much of the nineteenth century, women of all races were even worse off in terms of the suffrage than were free black men. The only state in which women had once had the right to vote, New Jersey, deprived them of that right in 1807. It was not until the late nineteenth century and during the first two decades of the twentieth that the inherent logic of democracy—and the illogic of denying women the vote that men possessed—combined with women’s changing social and economic roles to wear down male (and sometimes vociferous female) opposition. Once it was clear that women were sooner or later going to be given the vote, large numbers of prudent male politicians switched sides from

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con to pro rather than run the risk of alienating millions of potential future voters and constituents. A large number of states did not bother to wait for the ratification of the nineteenth amendment in 1920—“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex”—either to enfranchise women fully or to allow them to vote in elections for the presidency. Before the close of the nineteenth century, half a dozen western territories and states (in date order, Wyoming, Utah, Washington, Montana, Colorado and Idaho) had opted to enfranchise women fully, though the implementation of their decisions was sometimes delayed.11 The fate of men-only voting in America was probably sealed in 1917 when New York’s exclusively male electorate in a statewide referendum approved an amendment to the state constitution giving women the vote in all elections on the same basis as men. As Alexander Keyssar points out in his monumental history of the franchise in the United States, “History rarely moves in simple, straight lines, and the history of suffrage is no exception.”12 With respect to voting rights, the democratic tide ran strongly during the first half of the nineteenth century, receded during the second half of that century and then ran more strongly again during various decades of the twentieth century. Innumerable restrictions on people’s right to vote—and on their capacity, in a practical sense, to vote—have frequently been lifted, then imposed, then lifted again. Some are still in operation. However, the fact remains that at least from the time of Andrew Jackson onward, and despite the supervening claims made over many generations on behalf of white people and men, opponents of universal suffrage in the United States have always found themselves on the back foot, having to fight harder to prevent extensions of the franchise—or to impose restrictions on the franchise—than have conservative-minded politicians elsewhere.13 The great majority of those in the U.S. who have fretted about franchise extension have recognized that their cause was hopeless. A prominent late nineteenth-century journalist, Edward L. Godkin, acknowledged that it was “a mere waste of time” to declaim

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against universal suffrage. He believed the challenge to educated men such as himself was to develop ways of having good government despite universal suffrage.14 During the late nineteenth and twentieth centuries, the franchise was extended across most of the economically developed world. The U.S. was almost always in the vanguard, but it was never alone. In other respects, however, the U.S. was strikingly different. It stood out. To an extent virtually unknown elsewhere, debates over the extension of the franchise in America ran in parallel with another, separate set of debates. Although the issue of who should be accorded the right to vote was raised throughout Europe and in much of the British empire, Americans were unusual in debating the entirely separate question of which offices those who had the right to vote should be able to fill by means of popular election. Should voters, in other words, elect not merely legislators—members of the federal House of Representatives and the state legislatures— but also, in addition, holders of a wider range of public offices? Americans were similarly unusual in debating the question of what those who had the right to vote should be able to vote about. Should they be given the chance to vote not merely for individual men (and latterly women) but for—or possibly against—specific measures, proposals and propositions? Should the scope of voters’ power not be extended in that direction? How many fish, so to speak, were to be caught in the net of democratic electoral politics? How widely was that net to be cast? Many Americans thought it should be cast very widely, far more widely than it already was. The first institution to be debated along those lines was the U.S. presidency itself. Was the president to be elected, or was he not to be elected, directly by the people? The overwhelming majority of those present at the 1787 convention thought he should not be. Instead, the founding fathers picked up an idea that had already gained some currency in the United States: the idea of a two-tier electoral process, with one, lower tier of electors electing a second, higher tier. Most members of the founding generation believed that ordinary voters were not equipped in terms of either knowledge or

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experience to be able to make intelligent choices among candidates for high office. They did, however, believe that most ordinary voters did know enough to be able to elect men with greater knowledge and experience than themselves, who could then proceed to make choices that were well informed and prudent. The process would be one, as they saw it, of “refining” and “mediation.” The aim was to maximize the chances that the man or men ultimately chosen would be “proper and eminent characters.”15 Thomas Jefferson, frequently perceived as an out-and-out democrat, summed up this line of argument in a letter of 1776: I have ever observed that a choice by the people themselves is not generally distinguished for its wisdom. This first secretion from them is usually crude and heterogeneous. But give to those so chosen by the people a second choice themselves, and they generally will chuse wise men.16

In connection with the election of the new republic’s “chief magistrate,” this conception was embodied in the 1787 Constitution. One body of people, the electors (with a small “e”) would choose another body of people, the Electors (with a capital “E”), in the form of the electoral college, to elect as president one of Jefferson’s “wise men.” If no majority emerged in the electoral college, the election would then become a more elaborate three-tier process, with the House of Representatives, voting state by state, making the ultimate decision. As we saw in Chapter 3, however, the framers collectively could not make up their minds whether the members of the electoral college should be elected by the state legislatures or directly by the people. Running rapidly out of both time and patience, they simply threw up their hands and left the matter for the state legislatures to decide. Some delegates undoubtedly hoped the state legislatures would opt for direct election by the people. Others, probably a majority, undoubtedly hoped the legislatures themselves would choose to elect the electors. In the event, it was no contest. Members of state legislatures might have been expected to want to hold the election of the

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presidential electors in their own hands, and initially many of them did. In 1800, for example, the legislatures of eleven states chose that election year’s electors; only five states allowed the people themselves to decide. But the position was transformed during the ensuing three decades. In 1828 the presidential electors were chosen by means of direct popular election in every state except Delaware and South Carolina. By 1832 one of those two states, Delaware, had instituted direct popular elections and only South Carolina stood out. (That state’s legislature ceded power to the people only after the Civil War.) The principal driver of the transformation that occurred during those decades was enormous popular pressure together with the consensus that prevailed in American society by that time that the people had, or should have, the right to choose. Events in the state of New York served to make the point. Seventeen New York state senators in 1824 successfully blocked a proposal for the direct election of New York’s members of the electoral college. In the harsh verdict of one of their contemporaries, they “shamelessly bid defiance to the known public will, and dared to try their strength against the mighty indignation of an insulted people.”17 Fearing the wrath of the people whom they had thus insulted, only one of the seventeen dared to run for reelection later that year. That one person lost. Democracy had won—again. In the case of elections to the U.S. presidency, the kind of twotier electoral process that attracted most of the founding fathers has survived; the electoral college still exists, at least as a formality, even though the people of every state now vote directly for their state’s electors. But the two-tier system adopted for the election of U.S. senators has not survived. In this case, the principle of democracy, after a considerable lapse of time, eventually gained a total triumph. The original arguments in the two cases for the adoption of some kind of two-tier arrangement were all but identical. Indeed, they were conjoined in one of John Jay’s few Federalist Papers, when he noted that, because of the Philadelphia convention’s wise pro-

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posals, the negotiation and ratification of treaties with foreign powers would both be in safe hands: The convention . . . have directed the President to be chosen by select bodies of electors to be deputed by the people for that express purpose; and they have committed the appointment of senators to the State legislatures. This mode has, in such cases, vastly the advantage of elections by the people in their collective capacity where the activity of party zeal, taking advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often place men in office by the votes of a small proportion of the electors.18

Jay could scarcely have been more consistent—or more blunt. The only difference between the two cases was that, whereas the Constitution left state legislatures carte blanche to decide how members of the electoral college—that “select body of electors”—should be elected, the Constitution was categorical about how U.S. senators should be elected: “the Senate of the United States shall be composed of two Senators from each State chosen by the Legislature thereof.” Period. It followed that, if the people themselves were to choose U.S. senators, either some extra-constitutional means of enabling them to do so had to be found, or else the U.S. Constitution itself had to be amended in some appropriate way. As it turned out, the one route was taken, followed later by the other. It all began quite informally. Beginning in the 1830s and 1840s and then accelerating in subsequent decades, the practice developed whereby would-be U.S. senators were not content to leave it to the legislature of their state to decide who should be elected but instead canvased their state’s voters with a view to building up popular support and, more particularly, to promoting the election of state legislators publicly committed to the would-be senators’ cause. Instead of members of state legislatures taking the lead, candidates for the U.S. Senate took the lead, with the people of a state being invited to vote for candidates for the legislature who

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would in turn, if elected, vote for the senatorial candidate whom the people preferred. “Gradually, voters came to choose between rivals for the state legislature, not on the basis of their capabilities as lawmakers, but rather on the basis of the vote they would cast in senatorial elections.”19 In 1841, James K. Polk, the Jacksonian governor of Tennessee, refused to call a special session of the state legislature to fill a Senate vacancy on the ground that “the members elected to the legislature in 1839 had not been chosen with the selection of Senators in view.”20 In 1858, Stephen Douglas and Abraham Lincoln campaigned across the state of Illinois, each seeking voters’ support for a slate of candidates for the state legislature pledged to support his own U.S. Senate candidacy. The New York Evening Post maintained at the time that another instance could not be shown “where two individuals have entered into a personal contest before the people for a seat in the United States Senate—an office not directly in the gift of the people, but their representatives.”21 Thus did the founding fathers’ two-tier conception begin to be subverted. The process of subversion continued during the latter half of the nineteenth century, with the political parties in more and more states nominating for the U.S. Senate candidates who then ran in tandem with candidates for the state legislature. Instead of those states’ legislatures electing U.S. senators, the people in those states simultaneously elected both their own state’s legislators and, in effect, their state’s U.S. senator. Some states, a growing number, went further. Taking their lead from Oregon, they instituted a practice whereby a state’s voters could indicate on their ballot which of the available candidates they preferred for the U.S. Senate, with, in addition, candidates for the state legislature being invited to subscribe to a pledge that, if elected, they would vote for whichever senatorial candidate the people had shown they preferred. In 1909, the Oregon legislature, although dominated by Republicans, nevertheless elected a Democrat to the U.S. Senate because the state’s voters had shown in the previous November that they wanted the Democrat and because enough of the legislature’s members had

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subscribed to the pledge. Oregon eventually amended its constitution formally to require its legislature to elect the people’s choice. By 1910, a majority of states had, by one means or another, ensured that whatever the U.S. Constitution might say—and still did say— the election of U.S. senators had effectively been removed from the state legislatures and put in the hands of the people. The sequel was all but inevitable. Members of the House of Representatives had believed for some time that what was good enough for them—namely, direct election by the people—should also be good enough for members of the Senate. The direct election of senators was first proposed in the House as early as 1826, and calls in the House for direct elections continued to be made, albeit somewhat sporadically, throughout the nineteenth century. The House by increasing majorities resolved to support a directelection constitutional amendment in 1894, 1898, 1900, 1902 (on that occasion unanimously) and 1911. Concurrently, more and more state legislatures made it known that they wished to be absolved of a responsibility that had by this time become, in a majority of cases, purely nominal. By 1911, thirty-seven state legislatures— considerably more than the three-quarters of states required to pass a constitutional amendment—had indicated that they favored change. The 1910 elections ushered into the Senate ten new proponents of direct elections in addition to those already there, and in June 1911 the Senate itself, by a more than two-thirds majority, finally gave in. By the summer of 1913, all of the state legislatures except those of Delaware and Utah had ratified the proposed amendment—sometimes unanimously, almost always by an overwhelming majority—and Article I, Section 3 of the Constitution was duly amended to read: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof.” As has often been pointed out, the seventeenth amendment could not have been passed by the Senate and been ratified by the requisite number of individual states if the practice of direct senatorial election had not already been well established. The amendment “simply universalized a situation

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which a majority of state legislatures [and state political parties] had already created.”22 The debate over direct senatorial elections turned overwhelmingly on the question of whether the people at large should be trusted with power and on the related question of whether they should not also be given sufficient power to enable them to counteract the alleged power of “the interests”—capitalists, monopolists, fi nanciers and large corporations. A congressman from Virginia predicted that, if big corporations sought to control legislation against the people’s interests, “they [would] meet with the indignant protests of the friends of the people.”23 A progressive Republican from Oklahoma insisted that “Corrupt methods may be used even when the people shall vote directly, but the danger is not so great, and it is more difficult to corrupt the people constituting the many than to corrupt legislators constituting the few.”24 George W. Norris of Nebraska maintained that too often “the will of the people [had] been absolutely nullified” by “the special interests and wealthy combinations” that controlled elections to the U.S. Senate.25 Most proponents of reform neglected to address the question of why, if the members of state legislatures were so corrupt and undemocratic, so many of them had connived at allowing the senators from their state to be elected by the people and had simultaneously called for the Constitution to be amended so as to provide for direct elections. The debate was partly about the respective roles that the states and the people should play in the U.S. political order; some of those most passionately opposed to direct election feared that, if direct elections were instituted, the effect would be to weaken the state legislatures, and therefore the states, vis-à-vis the federal government in Washington, D.C. But a far larger proportion of the opponents of direct elections objected to what they saw as yet another extension of democratic power. Indeed, the debates in 1911 over the seventeenth amendment were probably the last occasion when significant numbers of American politicians, albeit an ever-diminishing minority of them, challenged directly the idea

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that the will of the people should, unchecked, prevail. Senator Chauncey Depew of New York, himself elected by his state’s legislature, reminded the Senate that one of the purposes of creating an upper house separate from the popularly elected House of Representatives was “to devise processes by which the passions of the hour shall not chrystallize into legislation without plenty of time for deliberating and calm judgment.”26 Senator Henry Cabot Lodge of Massachusetts, also chosen to serve by his state’s legislature, agreed and went on to regret the imminence of a “retrogression” to a situation in which representative bodies merely registered the preferences of those outside on whose votes they depended.27 Senator Elihu Root of New York—who at a later date feared that “an ignorant democracy” would lead directly to war— protested that one of the Senate’s principal functions was to be as different as possible from the House of Representatives. Whereas the House was to be filled with men of energy, full of fight, restless and innovative, the Senate was to consist, and should consist, of elder statesmen, men who had “attained the respect of their fellow citizens” and who would willingly accept the burdens of public office as a patriotic duty but would “never subject themselves to the disagreeable incidents, the labor, the strife, the personalities of a political campaign.”28 But men with views such as those were the last of a dying breed. Not only did they lose the final votes in the Senate on the proposed direct-elections constitutional amendment, but they spoke a language that by now was scarcely understood in the U.S. Most politicians, even those who harbored the gravest doubts about the desirability of uninhibited democracy, were by now wearily prepared to concede that democracy’s time had come, that there was not a great deal that they could do about it and that anyway the people perhaps really ought, in the end, to get their way. In a short speech to the Senate delivered in 1911, Senator Francis Warren of Wyoming admitted that, although he himself objected profoundly to the proposed direct-elections amendment, he would nevertheless vote for it:

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I believe that this Senate is convinced that the election of the Senate by direct vote would not be for the best interests of the people of the United States or tend to perpetuate the tried institutions of our Government. But, on the other hand, the Senate, I believe, does not arrogate to itself omniscience. Higher than its own view it holds the right of the people to express their views upon all questions affecting their welfare.29

In other words, although the Senate was not omniscient, the people were—or at least ought to be—deferred to as though they were. The ideological victory of populist democracy was complete.30 One of the mechanisms that allowed state legislatures to delegate to the people their responsibility for electing U.S. senators, even prior to the ratification of the seventeenth amendment, was the institution of the direct primary. By the time the seventeenth amendment was ratified, large numbers of states had already adopted primary laws that enabled voters to indicate which of the available candidates they believed their party should nominate for the Senate. The results of such primaries were not legally binding on their party’s representatives in the state legislature, but most of a party’s state legislators usually did as they were bidden. But the case for introducing direct primaries went far beyond the specific question of how U.S. senators should be elected. The overarching case for the direct primary was the one that Albert J. Beveridge put in 1906, though it had been argued by others long before then.31 As Beveridge and others pointed out, the question was straightforward: if ordinary voters were allowed to choose between the candidates, why should they not also be allowed to choose the candidates? To that question, there was, in America, only one possible answer. In the beginning in the U.S., most political parties’ state legislators played the largest role in the selection of their party’s candidates for elective office; but in most states by 1840 or thereabouts that role had come to be played, instead, by a variety of other bod-

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ies: caucuses, conventions and other such forums. But of course it was always open to individual state and local parties to go further and to allow their rank-and-file supporters to elect directly the delegates to such caucuses, conventions and other forums. Elections of this kind—informal, extra-legal and orga nized by the parties themselves—came to be known as “primary” elections. They were widely used. But because such extra-legal elections were open to abuse, including bribery, intimidation and the infiltration into them of supporters of rival parties, and because in those states that were dominated by a single party, these primary elections were actually more important than the ensuing general elections, more and more state legislatures passed laws to regulate them. Initially these laws were optional—parties could take advantage of them or not as they liked—but over time a growing number of states, cities and towns required them to be adopted and enforced. The institution of the primary election gradually, during the late nineteenth and early twentieth centuries, evolved into the “direct” primary election, with voters choosing candidates in state-organized primary elections in much the same way as they chose among the parties’ candidates in state-organized general elections. The earliest historians of the direct primary in the U.S., Charles Edward Merriam and Louise Overacker, writing in the 1920s, noted that “the most conspicuous feature of this primary legislation [that passed during the 1890s and subsequently] was the gradual approach toward the system employed in general elections.”32 By the end of World War I, almost every state in the Union mandated the use of the direct primary in some or all statewide elections and some or all of the state’s municipal and other local elections. In comparison, the use of primaries in connection with presidential elections spread only very slowly. Beginning shortly after the turn of the twentieth century with Florida, Wisconsin, Pennsylvania and Wisconsin, a number of states—though initially never more than a couple of dozen—permitted or required their state’s political parties either directly to elect their delegates to their party’s national convention or else, or in addition, to make it possible

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for the state’s voters to express their personal preference for one or other of their party’s would-be presidential nominees. Between the end of World War I and 1968, however, several states abandoned their presidential primary and there was no general tendency for the number of states holding presidential primaries to increase. Only after 1968 and the chaotic Democratic convention of that year, held in Chicago, did the number of states holding presidential primaries explode—to the point where, at the beginning of the twenty-first century, the presidential primary has almost entirely superseded the quadrennial nominating convention as each party’s means of selecting its presidential candidate. The growth in the number of primaries, especially presidential primaries, was thus far from linear, but in the end it proved all but inexorable. If the people were to be allowed to decide in other domains, there was an overwhelming case for them to be allowed to decide in this one. Any proposed reform that held out the promise of increased citizen involvement in electoral politics, and control over actual election outcomes, automatically had a great deal going for it. It was an exceedingly hard reform to resist. “Our government,” said one staunch advocate of the direct primary, “is founded upon the theory that the people are sufficiently intelligent to control their own government. . . . The direct primary is simply a method by which the will of the people can be ascertained in the selection of those who shall make and administer the laws under which all of the people must live.”33 The absence of a prevailing consensus along such robustly democratic lines largely explains the failure of the direct primary to be widely adopted, if adopted at all, in European and other countries. In practice, of course, much depended on the state-by-state calculations of political elites, especially party leaders. In an increasingly populous, urbanized and variegated America, and with the political parties themselves highly decentralized, the leaders of more and more individual state parties, fearing a loss of control over the nominating process in their own state, saw the direct primary as the best available means of enabling them to continue to

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exercise some influence over nominations. In many cases, they had discovered that their writ no longer ran within their own state and local parties. Better, they calculated, an orderly state-centered set of procedures through which they could hope to have some influence over nominations than a process that was chaotic, out of their control and also, in many voters’ minds, disreputable.34 State party leaders, for obvious reasons of patronage and power, were far more interested in the results of state, municipal and local elections than in the results of presidential elections. That is the main reason why presidential primaries in most states were introduced so much later. Nominations mattered to state and local party bosses because patronage mattered. They thrived on it. And patronage in this historical context meant influencing not only appointments to appointive offices but elections to a wide range of elective offices. The tenets of Jacksonian democracy, well established in America’s political culture by the middle of the nineteenth century, seemed to demand, not merely that presidents, governors and mayors should be able to appoint their own supporters to offices in their gift but that other public offices should be fi lled, not by executive appointment at all but by direct election. As a waspish conservative delegate to a state constitutional convention put it midway through the nineteenth century, “[We] have provided for the popular election of every public officer save the dog catcher, and if the dogs could vote, we should have that as well.”35 Curiously, no one seems to have written the history of the spread of elective offices in the United States, but certainly there were far more of them in the U.S. by the end of the nineteenth century—and there are far more of them today—than in any other established democracy. There would probably be even more than there are if the civil service reforms of the turn of the last century had not, within limits, elevated the value of appointment on merit above the value of democratic choice. Even so, even if the onrush of elective offices had been stemmed by the end of the nineteenth century, it was never completely

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reversed in most states and cities. The constitution of Vermont to this day provides for the popular election of, among others, the state’s governor, lieutenant governor, treasurer, secretary of state, auditor of accounts, town representatives, high bailiffs and state’s attorneys. The constitution of Kentucky gives that state’s voters the opportunity to elect the state’s governor, its lieutenant governor, its auditor of public accounts, its commissioner of agriculture, labor and statistics, its secretary of state and its attorneygeneral. The constitution of California, more modest (at least in this regard), allows the state’s voters to elect, as well as the governor and lieutenant governor, the state’s attorney general, controller, secretary of state and treasurer. A political scientist resident in Austin, Texas, has calculated that he and his neighbors have the privilege of filling, by means of democratic elections, no fewer than nineteen state and local executive-branch offices, including the Texas railroad commissioner, the Travis County constable and tax assessor-collector and the president and vice president of his local school board.36 Voters in federal elections are pikers by comparison. The only executive-branch offices they can fill are the U.S. presidency and vice presidency—and even that is considerably more than the framers of the 1787 Constitution intended. They meant the electoral college to be just what its name implies, a genuinely collegiate body separate from the mass electorate. This very large number of executive-branch offices—offices filled by means of direct popular elections—thus points to a sharp distinction between America’s governing arrangements at the state and local levels and its governing arrangements at the federal level. But that is far from being the only distinction between those two levels. There are plenty of others. One of them is the popular election, as distinct from the appointment, of men and women to sit on the judicial bench. No federal judge has ever been elected or is ever likely to be. But judges are now elected in a large majority of the fifty states. If only they knew, most of the framers of the 1787 Constitution—like Tocqueville, as we saw in the last chapter— would be aghast.

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The founding fathers simply took it for granted that judges should be appointed rather than elected. As we saw in Chapter 3, they never considered the possibility that members of the federal judiciary might be elected. The only questions that they debated concerned the separate issues of how, and by whom, federal judges should be appointed. In the view of most—possibly all—of the founding fathers, the judiciary existed, not to serve the interests of the majority but precisely to restrain popular majorities, to protect minority rights and to defend the interests of property. Above all, judges were to be independent of both the people and the other branches of government. On one of the few occasions when the question of judicial tenure was debated at the constitutional convention, a motion that federal judges should be capable of being removed by votes of both houses of Congress was overwhelmingly defeated. James Wilson insisted that the judges “would be in a bad situation if made to depend on every gust of faction which might prevail in the two branches of our Government.” Edmund Randolph “opposed the motion as weakening too much the independence of the Judges.”37 Their views were the views of the great majority. But, as so often, the views of the founding fathers were not those of subsequent generations of Americans, at least in a majority of states. As early as 1812, Georgia became the first state in the Union to introduce the popular election of trial judges, and in 1832 Mississippi became the first state to opt for the election of appellate-court judges. By the time of the Civil War, twenty-one of the thirty states then in existence had introduced judicial elections, and between the early 1860s and the end of the 1950s all but one of the twenty new states admitted to the Union provided for judicial elections in their founding constitutions. At present, some forty states provide for the direct election of all or most of their judges. In the early days of the republic, the appointment of judges by some combination of state governors and state legislators seems to have been generally accepted, partly because judges were not thought to be very important people and partly also because appointment

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was the method of judicial selection that had been adopted by the founding fathers. But by the time of Andrew Jackson the prevailing view had changed. Radical democrats objected to the fact that courts in some states were striking down popular statutes passed by those states’ legislatures. More conservative delegates to constitutional conventions in a number of states objected that, on the contrary, many judges showed signs of becoming overly dependent on the goodwill of state legislators, on whom they depended for their reappointment; popu lar election, in their view, would actually reinforce the independence of the judicial branch. Many lawyers—and lawyers attended state constitutional conventions in large numbers—also appear to have reckoned that the popular election of judges would have the effect of enhancing the status of the entire legal profession. Given that most state governments by the 1840s were heavily party-dominated, some reformers also identified nonpartisan popular elections as a means of reducing the influence over the judiciary of the leaderships of incumbent political parties.38 It goes without saying, however, that these arguments in favor of judicial elections were all underpinned by the prevailing concept of popular sovereignty. Contemporary conservatives deplored that simple fact; post-Jacksonian reformers either welcomed it or, more commonly, took it for granted. At the state conventions that decided to introduce the election of judges, advocates of change made constant reference to the desirability—indeed the necessity— of founding the judicial branch of government, as well as the executive and legislative branches, on the popular will. A delegate to the 1849–1850 Kentucky constitutional convention observed that the judge “is to look somewhere for his bread, and that is to come from the people. He is to look somewhere for approbation, and that is to come from the people.” Another delegate to the same convention was equally insistent: “We want no judiciary independent of the people.”39 A delegate to the 1850–1851 Ohio state convention protested that a judge should be “as much a representative of the people, as a member of the Legislature.”40 A delegate

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to the Massachusetts convention of 1853 told his colleagues: “I like to have independent and upright men in all public stations, but I do not like the idea of having any public officers entirely independent of the people. I think they should be so dependent at least, as to have an eye to the power they serve.”41 Arguments like these, by the time they were made, were hard, almost impossible to resist, and only rarely were they successfully resisted. In 1873, the electors of New York were invited to revert to the system of judicial selection by appointment in that state. They declined the invitation by an overwhelming majority. Against that background, it is an intriguing fact that judges in the federal system are not elected, and it is even more intriguing that no serious proposal has ever been made to amend the Constitution of the United States to provide for the election of federal judges. The very possibility is almost never mentioned—a topic we shall return to briefly in Chapter 7. One of the issues that arose when state constitutional conventions debated the possibility of electing judges was for how long those judges, once elected, should serve. Article III, Section 1 of the federal Constitution contained—and still contains—the simple statement: “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,” meaning in practice either for life or until they retire voluntarily. The majority of state conventions, however, were not content with that approach. They believed that judges should be accountable to the people; and, if the people were to be able to hold the judges to account, they had to be able to dismiss as well as elect them. In the words of one Ohio delegate, judges who were forced to seek reelection—and, even more, reelection at relatively short intervals—would be more likely to “take care that their opinions reflect justice and right, because they cannot stand upon any other bases.” 42 In the event, most of the terms chosen were considerably longer than those accorded members of the state legislatures; but, even so, they seldom amounted to as much as a dozen years and were frequently as short as four years. No state that holds elections for judicial office

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provides that any judge, once elected, shall then go on to serve during good behavior. If any judge is to serve for an extended period, he or she must be reelected or otherwise confirmed in office by the electorate.43 State constitutional conventions applied the same logic of strict accountability and therefore of short terms to holders of other state (and sometimes local) offices. Most states quite quickly abandoned the colonial and immediate postcolonial practice of holding annual elections for state offices; terms as short as a single year proved impractical as well as disruptive. Nevertheless, the assumption remained—and still remains—that all elected officeholders should be kept on a tight electoral rein. The great majority of the lower houses of American state legislatures resemble the federal House of Representatives in having two-year terms; only five allow their lower-house representatives to remain in place for as long as four years. But no state upper house resembles the U.S. Senate in allowing its members to serve for as long as six years. In a majority of states, members of the upper house remain in office for four years; but in a dozen others, scattered across the Union, state senators, like their brethren and sisters in the lower house, enjoy terms of only two years. The great majority of state governors now resemble the U.S. president in serving four-year terms. In a rare reversal of normal American practice, in recent decades the terms of state governors have tended to be lengthened, typically from two years to four. The “recall” is another device designed to keep elected officeholders on a tight rein. That device is also found rarely outside the United States, and, once again, it is found only in some states in the U.S. As we saw in the previous chapter, the idea that voters should be given the power to evict elected officeholders from office altogether or else require them to run in a special election prior to the next round of scheduled elections was mooted occasionally in early America—especially in a few towns in Massachusetts—but was never put into practice. It certainly found no favor at the constitutional convention in Philadelphia, where it was not even dis-

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cussed.44 Americans had to wait until the twentieth century before they—or at least a substantial fraction of them—were accorded the right to recall incumbent officials. It was early in the twentieth century that the position changed. Progressive-era campaigners and politicians saw the recall as a means of undermining the power of the party machines that dominated the governments of some large cities. They also saw the recall as a means of rooting out corruption and curbing the influence of powerful interest groups. But, as always, the recall was advocated above all as a democratic device, one that, if instituted, would ensure that elected representatives would think twice before flouting either the opinions or the interests of their electors. The core conception was still that of the representative as agent. One progressiveera publicist strongly approved of the situation of an elected official holding office in a jurisdiction that had had the wisdom of giving the voters the option of recalling him: “He holds an indeterminate franchise, or what is sometimes called a tenure during good behavior, within the limits of a maximum fi xed term. It is a continuing control, calculated to preserve at all times the relation of master and servant between the people and their representatives.”45 The first jurisdiction to give voters the option of recalling their representatives was the city of Los Angeles in 1903. The state of Oregon followed in 1908 and, three years after that, so did California as a whole. A further seven states introduced the recall between 1911 and 1917, when America entered World War I. Three more introduced the device between the two world wars, and a further half dozen did so at widely spaced intervals during the decades after 1945. At present, the recall is available to voters in eighteen states, roughly a third of the total. Several thousand recall elections have been held by now, but almost all of them have taken place in towns and cities. Few have involved the possible recall of state governors or legislators. The two most famous have also been atypical: the attempted recall in 1987 of Governor Evan Mecham of Arizona, which almost certainly would have succeeded had Mecham not already been impeached and removed by the Arizona

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legislature, and the successful recall of Governor Gray Davis of California in 2003 and his defeat in the ensuing election by Arnold Schwarzenegger, a foreign-born bodybuilder and movie star. Even in those states that allow for a gubernatorial recall, most governors remain firmly, if undoubtedly sometimes apprehensively, in place. It remains something of a mystery, given the recall’s intrinsic democratic attractiveness, why only a minority of states have taken the device on board and why those that have taken it on board have done so while others, apparently similarly placed, have not. Most of the states that adopted the recall during the progressive era were in the Midwest and the Far West. The states that have done so latterly— for example, Georgia in 1975, Montana in 1976, Rhode Island in 1992 and New Jersey in 1995—give the impression of being an almost random sample of the rest of the states of the Union. However, as we shall see later, little mystery, if any, surrounds the fact that the recall device has not been taken up at the federal level. A widening franchise, the direct election of senators, primary elections, the election of a wide range of public officials, short terms and the recall—all were manifestations of America’s deep democratic impulse. But something was still missing: the ability of American citizens to take action directly on their own behalf by means of the initiative and referendum; or, rather, something would have been missing if the introduction of the initiative and referendum had not already made possible the introduction of some of these other changes, notably the recall. Initially, few, even in the U.S., talked of the initiative and referendum. There was certainly no such talk at the 1787 convention. Americans, like the citizens of other countries, continued to conceive of democracy as an essentially electoral and representative process. Direct democracy might thrive in a few towns and townships, mainly in New England, but for many decades it scarcely figured on the agenda of national politics. It did, however, begin to figure on that wider agenda during the latter part of the nineteenth century, largely as a result of voters’ increasing distaste for, as they saw it, the political dominance of giant corporations and trusts, aided and abetted

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by their agents and hangers-on in state legislatures. Unlike most of the democratic devices discussed so far, initiatives and referendums, especially the two in combination, were quintessentially emanations of the late nineteenth-century progressive era.46 To be sure, there were precedents of a kind. Beginning in about 1830, the practice of ratifying state constitutions by means of a popular referendum became the norm, with roughly four-fifths of the constitutions of the newly admitted states being ratified in this way. From the 1860s onward, all new state constitutions, and most proposed amendments to them, were also made the subject of popular approval. Some of the states’ constitutions went further and required legislative proposals on such matters as the location of the state capital and the introduction of new taxes to be submitted to the people. The holding of state and local referendums gradually became a feature of established American political practice, though by no means everywhere in the country. However, in the eyes of radical progressives, the referendum on its own was not enough. As the word itself implies, a referendum, even a popular referendum, refers to something referred—a proposal referred by one body, normally a legislative assembly of some sort, to another body, normally the people. However, state legislatures in the U.S. toward the end of the nineteenth century were precisely those bodies that populists and progressives held in the greatest loathing and contempt. State legislatures referred to the people—if they bothered to refer anything at all—only those constitutional amendments and legislative proposals that they themselves wished to see adopted, proposals that were often, as worded on ballot papers, long, complex and exceedingly obscure. The more radical reformers sought a mechanism whereby ordinary voters could bypass their elected representatives and require their own proposals to be put directly to the people at large. Hence the notion of a combined initiative-referendum: the one, the initiative, to precede the other, the referendum. Many of the reformers wanted to do more than bypass corrupt state legislatures; they wanted the institutions of democracy itself to be transformed. Eltweed Pomeroy,

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one of the earliest and most influential advocates of the initiativereferendum, argued that “representative government is not democracy; it is a half-way house toward democracy.” He maintained that “with the Initiative and Referendum we have a government that is in its forms actually democratic.” 47 In the event, the direct-democracy reformers enjoyed a substantial— but at the same time only a partial—success. Direct Legislation Leagues were formed in most states, but they hardly constituted a mass movement. To achieve success, they needed larger and better organized allies, invariably ones with agendas of their own, that is, causes that they believed could be promoted only by means of the initiative-referendum. The reformers also needed there to exist, in any given state, a volatile electorate and a relatively porous party system, circumstances that would allow ad hoc pro–direct democracy coalitions to be formed. Those conditions were frequently met in the West, but only occasionally in the East and almost never in the old Confederacy, where the dominant Democratic Party elites, far from wanting to extend democracy’s scope, were heading in the opposite direction, denying voting rights to black people and, in many states, poor whites as well. By the time America entered World War I, the initiative-referendum had been introduced, in a wide variety of forms, some more liberal than others, in twentythree states, all but nine of them in the West. No state adopted the device between the two world wars, and only half a dozen have adopted it (or readopted it) since then. At present, the initiativereferendum, still in a wide variety of forms, is available in twentyseven—just over half—of the fifty states. It is available in only two of the states, Maryland and Massachusetts, that constituted the original Union. Long-established institutions and habits appear to be the hardest to dislodge. Initiatives and referendums in the states where they do exist are far from being dormant devices. It has been calculated that between 1900 and 1940, roughly a thousand propositions were placed on the ballots of the relevant states, about three-quarters of them in the form of initiatives, the rest as pure referendums.48 The rate at

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which initiatives and referendums took place fell sharply during the 1940s and 1950s—one observer in California noting that the voters of that state, of all states, were “inclined to view ballot measures, especially initiatives, with misgiving and outright suspicion”49 —but it then rose even more sharply and actually accelerated during the last four decades of the twentieth century, as those decades witnessed a mushroom-like growth in the number of politically active interest and campaign groups and simultaneously witnessed a revival of public interest in direct-democratic arrangements. Those four decades witnessed, in particular, the passage in 1978 of Proposition 13 in California, which capped the rate of increase in that state’s property taxes and triggered what amounted to a nationwide anti-tax revolt, with the voters of nine other states passing similar voter-inspired initiatives and the legislatures of another thirty-seven states—on their own initiative but prompted by the passage of Proposition 13—enacting similar tax-capping measures. Since 1978, voters in a variety of individual states, but most notably California, have passed propositions bearing on such matters as the teaching in public schools of languages other than English, the denial of welfare and other benefits to illegal immigrants and the abolition of various state-mandated measures designed to favor racial and other minorities. Few additional states have adopted the initiative and referendum in recent decades; but, where those two devices—or combinations of them—already exist, the use of them has become far more frequent than in the past. As in the case of the recall, the most conspicuous outlier, though not the only one, is the United States itself, where both the initiative and the referendum are unknown. Many of the features of America’s original Constitution still survive in the twenty-first century. The presidency still exists. Congress, with its two separate houses, still exists. So does the federal system. The Supreme Court and the “inferior” federal courts still sit. But, as we have seen in this chapter, the thrust of almost every major innovation in the American system since 1787 has been in the direction of augmenting the people’s power, certainly far beyond

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what the great majority of the founding fathers had in mind. More citizens are enabled to vote. They can now vote directly for both presidential electors and members of the U.S. Senate. Primary elections enable them to choose the candidates for whom they will subsequently vote in general elections. In most states, they are entitled to vote in referendums. In many states, they elect judges. In some states, they can take the initiative in legislation and even recall public officials who have in any way displeased them. In no other country in the world has the tree of democracy—in the sense of people power—spread its branches so widely. As Elias Smith said, “The government adopted here is a DEMOCRACY.”50 Writing in 1809, he was perhaps premature, but two centuries later few would doubt the truth of what he had to say. The spread of democratic ideas, practices and assumption has seldom been checked. It has almost never been reversed. One exception, however, stands out dramatically: the imposition since World War II of term limits on presidents of the United States and on many state and local public officials. Term limits clearly do not increase the number of options available to voters. They reduce that number. Voters may thus be prevented from voting for people they would like to vote for simply because those people are prevented, by the U.S. Constitution or state law, from running again. In addition, voters, far from gaining greater control over elected officials as a result of term limits, actually lose a degree of control. During a term-limited official’s final term in office, he or she cannot effectively be held to account by the voters. The voters cannot hold out either the potential reward of reelection or the potential punishment of electoral defeat. Officials in that position may be accountable to their successors, to their conscience, to history or to God, but they are no longer directly accountable to the people. In that simple sense, term limits, while they may (or may not) be desirable on other grounds, are undemocratic, even anti-democratic, by their very nature. How term limits came to be adopted in the United States we shall consider in Chapter 7.

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In the meantime, however, we return to our two tectonic plates. In the next chapter, we pause to examine the two bodies of thought— the two profoundly antithetical bodies of thought—that underlie the American political system as it now exists. The twenty-first century American political system is by no means an unprincipled system. On the contrary, it is, as we have begun to see already and will see even more clearly in the next chapter, a two-principled system. It is the abiding conflict between the two principles that makes the American political system such a puzzling and interesting phenomenon.

6 Two Tectonic Plates, Two Nostalgias

With regard to its constitutional politics, the United States

should probably be known as “the land of the two nostalgias.” The citizens of the great majority of the world’s countries are most unlikely to be nostalgic about their country’s political past. Indeed, majorities in many countries—France, Germany, Italy, Russia, Japan and China, to name but a few—would probably prefer to forget all about theirs. Alternatively, if the citizens of those countries do care to recall their past in political terms, the past that they have in mind is apt to be located far away, in some real or imagined age of heroes: ancient Rome in the case of Italians, for instance, or the time of Alexander Nevsky for Russians. In this respect as in so many others, Americans are different. They hold in enormous reverence the main actors and episodes in their country’s political history. Sometimes their reverence borders on ancestor worship.1 However, Americans are nostalgic for two separate visions of the past, and the two are far from being identical. On the contrary, millions of Americans conjure up in their minds two separate conceptions of how the good life, in political terms, should be lived.

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Both visions are anchored deeply in the past but have fundamentally different characteristics and conflict with one another at almost every point. Without seeming to know it, Americans in very large numbers worship, simultaneously, at the ancestral shrines of two warring gods. One of the two gods is embodied in the persons of George Washington, the revolutionary generation, the founding fathers and the framers of the 1787 version of the Constitution. They and their handiwork are held in the highest imaginable esteem. The esteem in which they are held is manifested in the long lines of tourists to be seen waiting patiently almost every day outside Constitution Hall in Philadelphia. The sacerdotal-sounding phrase “founding fathers” in itself reveals much. The vision of the past associated with the founding fathers exudes self-confidence. It is a sophisticated vision, one of an intellectual elite, a self-selected group of confident and successful men drawn from all parts of the country, determined to promote the interests of the country as a whole. It is also, among other things, a continent-wide vision, not one in any way confined to a single town, village or homestead. Although the founding fathers themselves counted among their number a substantial proportion of large-scale landowners and farmers, the image of the past associated with them is an essentially urban image, one of education, learning, book-lined studies and oak-paneled boardrooms. If by no means exclusively urban, that image is certainly urbane. Americans’ other image of the past—the other form that their nostalgia takes—has a more local and domestic quality. It is essentially a rural and small-town image, one well captured by the paintings of Norman Rockwell. It is a vision of homely virtues, innocence and purity, of humility in the eyes of both God and one’s fellow creatures. In this vision, matters of the spirit count for far more than matters of the mind. Indeed, intellectuals—people who think too much—are apt to be distrusted. From America’s earliest years, a largely imagined rural way of life was sanctified, and rural hometown virtues were judged to be superior to those of

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the Ivy League university, the big city and the headquarters of large corporations. It seems that the more urban and industrial America became, the more the citizens of America hankered after a simpler and gentler past. “The more farming as a self-sufficient way of life was abandoned for farming as a business, the more merit men found in what was left behind. And the more rapidly the farmers’ sons moved into the towns, the more nostalgic the whole culture became about its rural past.”2 To this day, the best kind of democracy, in the minds of millions of Americans, is “grassroots”—note the word—democracy. To be sure, this particular vision of the past is wholly consonant with the vision of one of the founding fathers, Thomas Jefferson, a man who did not see a town till he was eighteen and who believed that “farmers alone are to be relied on for expressing the proper American sentiments,” but it is a far cry from the world of college- and self-educated intellectuals like James Madison and Alexander Hamilton.3 Even now, each of these two visions of the past is closely tied to a quite specific normative conception of how the good political life should be orga nized. Both of the two conceptions are familiar, at least to students of politics and political philosophy, but their main features are nevertheless worth outlining here, because both conceptions, however disparate, are alive and well and cohabiting in modern America. To revert to our earlier metaphor, each of the two conceptions constitutes one of our two adjacent, grinding tectonic plates. The fi rst of the two conceptions is variously known as the “republican” or the “constitutional” conception. The adjective “constitutional” will be used here, but only for the sake of convenience; other words could have been used. The founding fathers, whatever their other differences, were constitutionalists to a man. They made their individual contributions, but they were happy to borrow and then to build on ideas that had earlier been expounded by political philosophers in other countries. A Frenchman, Baron de Montesquieu, living in the middle of the eighteenth century, regarded Great Britain as possessing the only genuinely constitu-

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tional form of government in the world. He called it “this beautiful system.”4 This tradition of constitutional thinking is still a vital tradition in almost all of the world’s free societies. The basic postulates of constitutionalism are the central importance of the individual human being—in the past, always thought of as a man—and the central importance, therefore, of the individual’s autonomy, his inalienable right to his own life, his own ideas, his own religion and his own possessions. John Locke envisaged man in a state of nature and asked why men in such a state should want to enter into society and to be governed by men other than themselves. His answer was that they did so, and were right to do so, “for the mutual preservation of their lives, liberties, and estates.”5 On another occasion, Locke wrote: The commonwealth seems to me to be society of men constituted only for the procuring, preserving, and advancing their own civil interests. Civil interests I call life, liberty, health, and indolency of body [by which he meant a man’s not having physical suffering inflicted upon him]; and the possession of outward things, such as money, lands, houses, furniture and the like.6

Constitutionalists have always argued, and will always argue, about the extent to which individuals and groups should be left free to advance “their own civil interests” and about the point at which individual liberty becomes, or should be thought to have become, license; but their strong presumption is in favor of individuals’ possessing the maximum possible amount of personal freedom and autonomy. Furthermore, individuals’ freedom should extend to the freedoms to associate with whomever they want and to say and write whatever they choose. In constitutionalists’ eyes, there invariably exist, actually or potentially, two threats to the freedom and autonomy of individuals. One stems directly from their fellow human beings, in the form of criminal gangs, over-zealous neighbors, religious bigots or indeed any form of intense social pressure emanating from whatever

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source. The other threat, actual or potential, is posed by government. If individuals’ “civil interests” need to be protected from others in society, they also need to be protected at least as much, perhaps even more, from the state and its agents. Why, John Locke asked, should men agree to quit the state of nature and enter into society if the government of that society proceeds to deprive them of the very rights to life, liberty, health and property that it was designed to protect and advance? Locke was clear that any government that sought to deprive men of their rights to life, liberty and property thereby forfeited its right to govern: Whensoever, therefore, the [government] shall transgress this fundamental rule of society, and either by ambition, fear, folly, or corruption, endeavour to grasp themselves or put into the hands of any other an absolute power over the lives, liberties, and estates of the people, by this breach of trust they forfeit the power the people had put into their hands . . . and it devolves to the people, who have a right to resume their original liberty, and by the establishment of the new [government] (such as they shall think fit) provide for their own safety and security, which is the end for which they are in society.7

In a later generation, John Stuart Mill observed, more laconically, that the “most cogent reason for restricting the interference of government is the great evil of adding unnecessarily to its power.”8 Government, then, must be constrained. Strict limits must be placed on its power and scope. How can these desirable ends best be achieved? One is by means of higher laws, laws that can be peacefully repealed or amended only under the terms of special provisions that set such laws apart from ordinary legislative enactments. Historically, the rulers of long-established regimes, and even the subjects of those regimes, saw little need to make this fine distinction between higher and ordinary laws; in their eyes, and with established governments already in place, a law was a law was a law, period. No law took precedence over any other. However, since

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the late seventeenth century, the founders of new political regimes have often felt the need to set out in some kind of code or constitution the details of how the new regime in question should be structured. Such documents typically go on to give clear indications of what the governing institutions under the new regime are legally entitled to do—and also, separately, what they are specifically denied the right to do. Written constitutions also usually contain provisions for their own amendment. John Locke, a practical man of affairs as well as a political philosopher, found himself in 1669 invited to draft “fundamental constitutions” for the new British colony of Carolina. His constitutions, quite apart from their title, have built into them at every point the distinction between constitutional or higher law and ordinary law. Paragraph 74 provides that at every meeting of the new Carolina parliament, “the first thing that shall be done shall be the reading of these Fundamental Constitutions. . . . Nor shall any person whatsoever sit or vote in the parliament, till he hath that session subscribed these Fundamental Constitutions, in a book kept for that purpose by the clerk of the parliament.” Locke’s constitutions provide, furthermore, that if special majorities in the Carolina parliament determine that any proposed law “is not agreeable to this establishment and these Fundamental Constitutions of the government, then it shall pass no further, and be as if it had never been proposed.” Lest anyone doubt the constitutions’ exalted legal status, Paragraph 120, the document’s concluding paragraph, reads (somewhat optimistically): “These Fundamental Constitutions, in number a hundred and twenty, and every part thereof, shall be and remain the sacred and unalterable form and rule of government for Carolina for ever.”9 Locke’s constitutions were thus to be unamendable, at least in theory, but they did contain references to a number of civil rights to be enjoyed by Carolinians, notably the freedom to profess any religion that recognized the existence of God; and by the end of the eighteenth century most constitutionalists believed that, if a free country needed a written constitution at all, that constitution

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should list those areas that were to be strictly no-go areas from the government’s point of view. As it happens, the delegates to America’s constitutional convention, although they were constitutionalists to a man, and although all of them appear to have believed that in the words of the Declaration of Independence all men are endowed with “certain unalienable rights,” did not, nevertheless, deem it necessary to include an explicit statement of those rights in their proposed constitution. Most of the delegates believed that American citizens already possessed the requisite rights, not least but not only because they were incorporated in a majority of the existing state constitutions. They also took the view that their draft constitution accorded the new federal government only strictly circumscribed powers and that those powers did not include depriving American citizens of the rights that they already possessed. “Why,” asked Alexander Hamilton, “declare that things shall not be done which there is no power to do?”10 But in the event the delegates’ omission of a bill of rights provided the antifederalists, those opposed to the ratification of the new Constitution, with powerful ammunition, and the federalists, led by Madison, gave way. He and other federalists promised that, if the new Constitution were ratified by the states, amendments incorporating a bill of rights would quickly be added to it. Shortly after ratification, they succeeded in fulfilling their promise, and more than two centuries later the first ten amendments to the American Constitution, commonly known as the Bill of Rights, are still in place. They themselves have never been amended. The U.S. was first in the field, but nowadays the constitution of almost every liberal democratic country embodies some sort of legally binding bill of rights. Another way of constraining government, apart from the adoption of constitutional laws and bills of rights, is by means of disaggregating the various institutions of government. In the first place, the various institutions of government should be so constituted that they are separate from one another and can legally function only within carefully delimited spheres. Second, the various insti-

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tutions should be so constituted that, under a wide range of circumstances, they must—if they are to act at all—act in concert with one another, with no one of them able to proceed in the absence of the agreement of all the others. The aim is to avoid any aggregation of highly concentrated governmental power. The means is to parcel power out among a variety of governmental institutions, composed in different ways and with differing constitutional mandates. Under a regime such as this, government will not only be constrained from outside itself but self-constrained. The internal structure of its institutions will minimize the chances that it will do anything that it ought not to do. This notion of the desirability of creating complex and interconnected structures of power was first adumbrated by Locke, but it received its fullest expression in the writings of Montesquieu. Both men’s ideas were much in the minds of many, probably most, of the delegates to the Philadelphia convention. Montesquieu maintained that in order to prevent abuses of governmental power “it is necessary, from the very nature of things, that power should be a check to power,” and he distinguished among what he called the “executive power of the state,” the “legislative power” and the “judiciary power.” In a now famous passage, Montesquieu explained his reasoning: When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate, should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and the executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and repression. There would be an end of everything, were the same man, or the same body, whether of the nobles or of the people, to

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exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.11

Montesquieu’s reasoning impressed itself on America’s founding fathers. So did his language, with his references to “checks” and, more obscurely, “powers.” The language of American constitutional discussion today is still mostly eighteenth-century language. The constitutionalists of the eighteenth century were not egalitarians. They took it for granted that all three of their so-called powers—that is, all of the institutions of government—should be in the hands of able and experienced men. The men in question need not be noblemen, but they should be men of the world and highly educated. They should, ideally, be men of mature years. Also ideally, they should be more than merely clever: they should be wise, and their wisdom should embrace disinterestedness. These wise men should definitely not be in the business of advancing their own interests, or those of their family, or those of some particular section of society. They should instead be concerned for the welfare of the society as a whole. Edmund Burke made the point in his letter to the electors of Bristol: Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local interests, not local prejudices, ought to guide, but the general good, resulting from the general reason as a whole.12

Burke was well aware that there were “different and hostile interests” and that some politicians believed it to be their duty—or at least their interest—to promote such interests. Of course he did: that was why he wrote his letter. But his ideal was of a cadre of wise and virtuous civic leaders, capable of transcending such self-serving preoccupations. As we saw in Chapter 3, the delegates to America’s

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constitutional convention in 1787 believed strongly in the need to recruit to the ser vice of the new federal government men of high ability and broad horizons. James Madison spoke of the need to engage “enlightened citizens,” men who possessed qualities of “coolness” and “wisdom.” John Dickinson wished the new Senate to comprise “the most distinguished characters.” Hugh Williamson expressed concern that, if elections to the U.S. presidency were too frequent, “the best men,” in his words, would not allow their names to go forward.13 Eighteenth-century constitutionalists differed—and constitutionalists differ still—about the precise role that the people should be accorded in a properly designed constitutional government. John Locke was clear that the people at large had certain rights vis-à-vis their rulers, including the right under some circumstances to rebel against them. He did not, however, have much to say about what he meant by “the people” (though he used the phrase often); he seems simply to have assumed that the people comprised everybody in an orga nized society other than the rulers of that society. And, being noncommittal about who exactly constituted the people, he had little or nothing to say about the precise role that the people should play in governing their society. To be sure, they had the right in extremis to rebel against their government, indeed to overthrow it; but, if Locke thought that they had any further rights to participate in the ongoing government of their society in the normal course of events, he did not say so. His attention was focused elsewhere. Locke’s Gallic successor, Montesquieu, was more forthcoming on both counts. He distinguished between those individuals who were members of the nobility and those who were not, only the latter constituting the people; and he strongly implied that, for purposes of electing representatives to the legislative branch of the government, the people should include all the inhabitants of a district “except such as are in so mean a situation as to be deemed to have no will of their own.”14 Montesquieu could, to that extent, be accounted a democrat; he indicated, in a way that Locke did

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not, that the people ought to play some role in the conduct of their country’s government. But he also believed that that role ought to be checked: the people should not be allowed to run amok—or, as he put it, “to act as they please.”15 In such a state [one with separate executive, legislative and judicial governmental branches], there are always persons distinguished by their birth, riches, or honours; but, were they to be confounded with the common people and to have only the weight of a single vote like the rest, the common liberty would be their slavery, and they would have no interest in supporting it, as most of the popular resolutions would be against them. The share they have, therefore, in the legislature ought to be proportioned to their other advantages in the state; which happens only when they form a body that has a right to check the licentiousness of the people, as the people have a right to oppose any encroachment of theirs. The legislative power is, therefore, committed to the body of the nobles and to that which represents the people; each having their assemblies and deliberations apart, each their separate views and interests.16

Montesquieu wrote those words in the course of describing “the constitution of England”; and the British House of Lords was obviously the legislative body composed of “persons distinguished by their birth, riches, or honours” that he had in mind. It was in a similar spirit that Alexander Hamilton and other delegates at Philadelphia maintained that the new U.S. Senate should bear at least some resemblance to the House of Lords in its composition and powers.17 Montesquieu and other constitutionalists took the view at the time—and constitutionalists have taken the same view ever since— that the people as a whole, whatever power they are assigned in any given constitutional order, should exercise it by means of rep-

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resentatives whom they elect. They should on no account seek to exercise it themselves. Montesquieu himself was emphatic on the point: “The great advantage of representatives is their capacity of discussing public affairs. For this, the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.” He added that the people “ought to have no share in the government but for the choosing of representatives.”18 In his view, that alone was within their reach. Burke similarly insisted that the British parliament was, above all, “a deliberative assembly”—and that that was exactly what it should be. Mill, although a democrat and an egalitarian by instinct (and a champion of women’s rights), believed that there was a need in a free society to strike a balance between what he called “trained and skilled administration” and the expressed will of the popular majority. The best type of constitution, he believed, was one that combined, on the one hand, “the great advantage of the conduct of affairs by skilled persons, bred to it as an intellectual profession” and, on the other, “a general control vested in, and seriously exercised by, bodies representative of the entire people.”19 Mill took for granted the existence of an incompatibility between effective government and direct democracy. In a still later generation, Senator John F. Kennedy, yet another philosophical constitutionalist, insisted, paraphrasing Burke, that members of a representative assembly such as the U.S. Senate should come to Washington “not as hostile ambassadors or special pleaders for our state or section . . . but as members of the deliberative assembly of one nation with one interest.”20 He denied, also in Burkean terms, that a representative should just vote as his constituents would vote if they were in his place. In his view, the people of Massachusetts had not sent him to the Senate “to serve merely as a seismograph to record shifts in popular opinion.” The future president added, perhaps more in hope than expectation: The voters selected us . . . because they had confidence in our judgment and our ability to exercise that judgment

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from a position where we could determine what were in their own best interests, as part of the nation’s interests. This may mean that we must on occasion lead, inform, correct and sometimes even ignore constituent opinion, if we are to exercise fully that judgment for which we were elected.21

Kennedy was not denying the legitimate claims of voters. Rather, he was saying that voters should vote, not dictate, and that neither voters nor anyone else should assume that voters had the right to dictate. Both historically and in the present, constitutionalists thus share a common willingness, even a strong desire, that systems of government should be based on the consent of the people and that appropriate means should be found of involving the people in the life of the government. Indeed, the body of constitutional thought can be stretched easily—and has been stretched over many generations—to encompass a far greater role for the people than was ever envisaged by the majority of the constitutional theorists of the seventeenth and eighteenth centuries. In fact, most of the world’s long-established and successful democracies have begun as constitutional regimes, ones that over time have had incorporated into them, without changing them fundamentally, quite substantial elements of elective democracy. Great Britain is a case in point. It was a monarchy before it became a constitutional monarchy. It was a constitutional monarchy before it became a representative, parliamentary system. It was a representative, parliamentary system long before it became—as a result of successive franchise extensions during the nineteenth and twentieth centuries—a fully democratic system. The institutions of British democracy, like those of most liberal democracies, are still dominated by representative institutions that are based on free and fair elections. In Britain, as in most democracies, democracy has been, so to speak, bolted onto constitutionalism. The central values and core practices of constitutionalism are easily stated. Constitutionalism’s central aim is good government,

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not people power. Good government has the qualities of moderation, balance and restraint. Decisions should be made in a measured, orderly, even stately way. Haste and precipitancy should be avoided. The institutions of government should be in the hands of men and women of outstanding ability. They should ideally bring with them into public office sobriety, wisdom and a wealth of experience. Consensus and compromise are preferable to simple majority voting. The rights of minorities should be protected. No one sectional interest or point of view should be allowed to dominate at the expense of others. Those whose political outlook is constitutional in character seek to promote both social and political stability. They seek to protect the people’s rights but also to limit their power. They regard the claims of the people as being only one of the claims that should be acknowledged in a properly constituted polity. It goes without saying that the constitutional spirit was the dominant spirit at Philadelphia. Constitutionalism is a powerful conception and the spirit behind it is a robust spirit, but there is another conception, one with equally deep roots—perhaps even deeper roots—in the American past and the American psyche. It is a conception that is all but unique to America. The best name for it is probably “radical democracy.” Its emphases are entirely different from those of constitutionalism. Indeed, radical democracy is almost an inversion of constitutionalism—constitutionalism turned on its head. As it happens, anyone who would expound the doctrine of radical democracy is at a disadvantage. The simple fact is that radical democracy, unlike constitutionalism, almost entirely lacks canonical texts. To be sure, elements of the radical democratic doctrine can be found in the writings of Tom Paine and Rousseau, but their writings contain only some elements, often heavily qualified, and there has never been a radical democratic thinker of the universally acknowledged weight of a Locke or a Madison. To a far greater extent than in the case of constitutionalism, radical democracy’s core ideas and assumptions have to be inferred, not from the discourses of great philosophers but from a diffuse body of speeches,

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pamphlets and tracts—and indirectly from the nature of the par ticular causes that radical democrats have advocated. Nevertheless, the principal ideas of radical democracy are not hard to identify, and they are at least as coherent as those of constitutionalism. In some ways, they are actually more so. For better or worse, radical democracy is a more straightforward, less subtle creed than constitutionalism. Its very simplicity is probably its most appealing feature. The core idea is simply that the people should rule—not a monarch, not an intellectual elite, not a body of aristocrats, not a body of experts, not some bunch of political appointees, but the people. This core idea is, in turn, founded on two further propositions. The first is that the people have a right to rule; they are morally entitled to do so and they have a moral right that is superior to that of any other person or body of persons. If government must exist at all—and some radical democrats have doubts on that score—then it should exist to serve the purposes of the great mass of the people. No valid claim can be made that it should serve the purposes of any narrower section of society. Rousseau was adamant: “Any law which the people has not ratified in person is void; it is not law at all.”22 In his writings, Paine quoted more than once, and with approval, the contention set out in the French National Assembly’s Declaration of the Rights of Man and of the Citizen that “the nation is essentially the source of all sovereignty; nor can any individual, or any body of men, be entitled to any authority which is not expressly derived from it.”23 In his own words, “It is to a nation that the right of forming or reforming, generating or regenerating constitutions and governments belong.”24 And by “nation” he clearly meant the people of that nation. The second proposition underpinning the notion that the people should rule is the contention that the people are, as a matter of fact, fit to rule. Deference—the idea that the mass of the people should defer to men and women of superior ability, not necessarily a hereditary or aristocratic elite, but certainly an elite of talent—lies near the emotional heart of constitutionalism. Lack of any such

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deference lies near the emotional heart of radical democracy. According to this doctrine, no special training and no special aptitudes are required in order to enable an individual to govern well and to participate in governing effectively. As jurors in a courtroom, men and women may lack training in the law and knowledge of the law, but they can be counted upon, more often than not, to arrive at just and sensible verdicts. Similarly, men and women need not have attended an Ivy League college, or even to be well read or especially intelligent, to bring their common sense to bear on complex issues. What matters is knowledge acquired in the school of life. As usual, Paine was emphatic, maintaining that in a properly constituted polity, every citizen noted the cost of every proposal and compared the cost with its advantages; “and above all, he does not adopt the slavish custom of following what in other governments are called LEADERS.”25 The radical democrat points out that most elected legislators vote their party’s line and usually know nothing or very little about what they are voting for (or against). The radical democrat also asks why, if members of the political elite are so smart, they screw up so often. According to the radical democrat, if ordinary citizens were fully empowered, they would undoubtedly make mistakes, but that would hardly differentiate them from their so-called superiors. One corollary of this conception of democracy is that there ought to exist a single, uninterrupted straight line ascending from the people to the government, which government, if there has to be a government, the people should control directly. If the people are to exercise that control, there should, of course, be no nonsense about creating or maintaining a system of government embodying multiple institutions and a “separation of powers.” The system of government should resemble a straight line, not a triangle. By the same token, since power is to ascend directly from the people to the government, there should be no nonsense about “checks and balances.” In the view of radical democrats, the people should rule unchecked; they should not be checked, unbalanced or overbalanced by anybody. In a properly constituted

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polity, the people’s claims are the only legitimate claims. Moderation and sobriety are not esteemed as virtues. Nor is a disposition to proceed always without undue haste. If the people are in a hurry, then their government ought also to be in a hurry. If what others might regard as a sectional interest comes to dominate, then, if that is the people’s will, so be it. Individual liberty is seen as a virtue, but only if the people deem it so. It goes without saying that even the most radical of radical democrats concedes that the people as a whole are almost never in full agreement and that there are always likely to be some people on one side of any issue and some people on the other side. The constitutionalist’s instinctive response to such situations is to play for time and to see whether perhaps some kind of compromise cannot be found. The radical democrat’s instinctive response is to allow the people straightforwardly to decide one way or the other. At bottom, radical democracy is a majoritarian doctrine. The claim that the people should rule is transmuted into a claim that a majority of the people should rule. Paine spoke for all those who have succeeded him: When any matter is proposed as a subject for consultation, it necessarily implies some mode of decision. Common consent, arising from absolute necessity, has placed this in a majority of opinions, because without it there can be no decision and consequently no order. It is, perhaps, the only case in which mankind, however various in their ideas upon other matters, can consistently be unanimous.26

Radical democrats seldom have any truck with notions of concurrent majorities or super-majorities. Simple majorities—or even, on occasion, simple pluralities—are more than adequate for their purposes. Within limits, radical democrats differ, however, in the view they take of representation. Some regard it as anathema; others regard it as being, up to a point, a regrettable, even desirable, necessity. Rousseau was having none of it, at least as regards the making of laws:

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Sovereignty cannot be represented, for the same reason that it cannot be alienated; its essence is the general will, and will cannot be represented—either it is the general will, or it is something else; there is no intermediate possibility. Thus the people’s deputies are not, and could not be, its representatives; they are merely its agents; and they cannot decide anything finally.27

Paine, more realistic and less convoluted in his thinking, accepted that in a large polity such as the United States the people could rule only through the medium of elected representatives. In Common Sense, Paine drew attention to “the convenience of [the public’s] consenting to leave the legislative part to be managed by a select number chosen from the whole body, who are supposed to have the same concerns which those who have appointed them, and who will act in the same manner as the whole body would act if they were present.”28 Later, in The Rights of Man, he lauded the institution of representation as enabling the people to rule themselves over a large territory: What Athens was in miniature, America will be in magnitude. The one was the wonder of the ancient world; the other is becoming the admiration and model of the present. It is the easiest of all forms of government to be understood, and the most eligible in practice; and excludes at once the ignorance and insecurity of the hereditary mode, and the inconvenience of the simple [i.e., Athenian] democracy.29

If the people could not govern themselves directly, they were to govern by proxy. But, in the radical democrat’s view, govern themselves they must—or should. Self-government is their right and possibly also their duty. All radical democrats, not just Paine, are forced to acknowledge that the issue of size—the issue of a polity’s geographical extent and the size of its population—has to be taken into account. The

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home of what Paine called “simple democracy” was ancient Athens, and ancient Athens was a very small place, one in which it was possible, at least theoretically, for the whole body of citizens to gather simultaneously at one location. In later millennia, in communities with much larger territories and populations, radical democrats in their search for forms of direct, unmediated people power—in other words, for democracy shorn of representation— have had to look elsewhere. One direction in which they have looked involves the attempt to recreate, in modern circumstances, political institutions that closely resemble those of Athens in the fifth and fourth centuries BC. What that means in practice is trying to ensure that decisions affecting citizens are taken at the lowest possible level, ideally in communities comprising no more than a few hundred or a few thousand people. Radical democrats in the United States have the great advantage of knowing exactly where to look for such communities and institutions: in the states of New Hampshire, Vermont and Massachusetts, with their long traditions of indubitably democratic, deliberative, face-to-face town meetings at which actual decisions are made. Frank M. Bryan captures the radicaldemocratic spirit perfectly in his preface to Real Democracy, his book about New England town meetings: “Up front, I’d better tell you this: I am a passionate believer in real democracy—where the people make decisions that matter, on the spot, in face-to-face assemblies that have the force of law.” It is time, he adds, to look inward toward the heart of the American polity: It is time for us to return to the towns, the villages, where pasture springs in the high hills of home feed the streams that fill the reservoirs of our national citizenship. Tiny places that govern themselves are both laboratories for the science of democracy and watersheds that sustain our liberal and continental politics.30

He mourns the fact that the institution of the town meeting has never taken root elsewhere, even in America (though the United

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States once boasted a popular radio program called Town Meeting of the Air). Of course, another means of instituting direct democracy and avoiding the intermediation of elected representatives is by way of the initiative and referendum. Both devices, and the two together whenever they are combined, enable citizens to determine, or at least influence, their own fate and the fate of their communities without having to rely on elected officials. On the one hand, citizens can veto the decisions of elected officials, and they can force elected officials to act in ways in which, left to their own devices, they would not choose to act. On the other, elected officials, if they choose to, can voluntarily hand over the making of important decisions to the people at large. Whatever the procedures and circumstances, initiatives and referendums are clearly a means of enhancing people power. If, for whatever reason, town meetings are not available, initiatives and referendums, in the eyes of radical democrats, are the next best thing. Radical democracy refuses to entertain any philosophical objections to the use of initiatives and referendums as democratic devices. Until toward the end of the last century, those three institutions— the devolving of power to town meetings, the initiative and the referendum—were the only available options for dealing with the problem of how to make genuine people power a reality in largescale, developed democracies. But then there arrived on the scene personal and laptop computers, the World Wide Web and e-communications in all their numerous forms. Suddenly it was possible for large numbers of people, widely dispersed across vast tracts of space, to share information and opinions, to exchange ideas and, above all, to vote for or against any proposition under the sun. E-referendums could, in principle, be held on issues ranging from taxing and spending to war and peace, with the location of fire hydrants and dog kennels somewhere in between. Predictably, the new e-possibilities divide, as they were always bound to do, constitutionalists and radical democrats. The more ardent radical democrats rejoice. Pure democracy is, or may be, at

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hand. Thanks to technology, ordinary people are at last in a position to make their own decisions without any involvement on the part of intermediaries. No longer is there any need for the intermediation of political leaders, elections and representative institutions. An e-equivalent of the old-fashioned town meeting could remain permanently in session, and such an electronic town meeting could easily be established nationwide or even globally. “Interactive information technology,” in the words of one commentator, “has the potential to become the twenty-first century’s electronic version of the meeting place on the hill near the Acropolis, where twenty-five hundred years ago Athenian citizens assembled to govern themselves.”31 In the view of radical democrats, e-democracy would create a better informed citizenry, promote greater citizen participation in civic life, enable ordinary people to curb the overweening power of “special interests” and would, above all, lodge ultimate political power directly in the people’s hands. Constitutionalists take a less sanguine view of e-democracy, as they do of all forms of direct democracy. Town meetings on a hill are all very well, but it was a town meeting that condemned Socrates to death and another town meeting, swayed by Alcibiades, that launched the Athenians’ disastrous expedition to Syracuse. Most people are ill informed and lack the time or the inclination, even via the internet, to make themselves well informed on any single issue, let alone on dozens of them. Many people, perhaps most, are not in the end all that bright. They are unable to think very far ahead and are liable to be swayed by specious arguments. They are also likely to be unable to see the interconnections between seemingly unrelated issues that nevertheless do bear on one another. Moreover, e-exchanges, however numerous, are unlikely to equate to the kind of face-to-face, back-andforth argument and deliberation that increase the chances of wise decisions being arrived at. Not least, e-democracy, like any other form of direct democracy, is liable to lead, as at Athens, to the taking of purely majoritarian decisions, ones that do not allow for accommodation and compromise and run the risk—the

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imminent risk— of trampling on the rights of minorities. In any event, as with all forms of democracy, the proceedings of e- democracy are almost certain to be skewed to the advantage of those with deep pockets, vested interests, technical expertise and the inestimable advantage of time. Constitutionalists, like other cyber-skeptics, suggest that the internet, despite the claims made for it, could “even widen the gap between the engaged and the apathetic.”32 To be fair, few radical democrats in the twenty-first century maintain that e-democracy should take over entirely from existing forms of representative democracy, and most constitutionalists accept that modern methods of communication allow for the possibility of harnessing the new technology to the needs of representative government. For example, some radical democrats and constitutionalists are able to agree that various forms of “deliberative polling,” which involve representative panels of citizens meeting together for a period of days to be informed about and then to thrash out specific issues, may be a way, not ultimately of making decisions but of informing those in authority who do make them. Most radical democrats, however radical they may be, stop short of advocating unchecked majoritarianism. Nevertheless, the differences between constitutionalists and radical democrats on the desirability of e-democracy, as on most other matters of constitutional design, go deep; and unsurprisingly it is in the United States that enthusiasm for greater citizen involvement in the making of governmental decisions via the new technology is most vociferous and widespread. To American ears, e-democracy sounds democratic, and democracy is good. Also for millions of Americans, e-communications, for all their technical wizardry, have the paradoxical advantage of seeming to recreate a long-lost world in which people are able to connect with one another directly on the basis of shared interests and intimacy. Paradoxically, the new technology appeals profoundly, in politics as in so many other ways, to Americans’ small-town nostalgia. After all, the global village is a village, not a city.

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A curious instance of large numbers of citizens worshipping simultaneously—and publicly—at the ancestral shrines of both of America’s two warring gods was visible in the early years of the present century. It took the form of the grassroots “tea party” movement, named after the men who, disguised as native Americans, protested during the 1770s against new tea duties imposed by the British government by boarding ships moored in Boston Harbor and dumping overboard dozens of chests of tea that were waiting to be landed. The tea party movement’s rhetoric combined a deep and abiding reverence for the Constitution—a clause titled “Protect the Constitution” headed the movement’s draft tenclause “Contract from America”—with an absolute insistence that America’s politicians— Congress, the president and even the courts—should do everything that the American people wanted them to do and nothing that they did not want them to do. 33 The mission statement of one of the movement’s many websites, JoinTheTeaParty.us, invited readers to “return the United States to the States and the people to which the US Constitution was written to do” [sic] while at the same time insisting that “it is ‘We The People’ who know BEST, not politicians!”34 A majority of teaparty activists appeared to conflate the text of the real U.S. Constitution with the Declaration of Independence, the Federalist Papers and almost everything else ever said or written by one or more of the founding fathers, conspicuously overlooking the fact that one of the principal aims of the delegates to the Philadelphia convention was precisely to create a federal government with greatly enhanced powers. That was why they had come together in the first place. Most tea party activists’ manifest ignorance of their own country’s early history strikes a foreigner as really rather touching. But the purpose of this chapter has not been to take sides between constitutionalism and radical democracy, whether the tea party’s version or any other, but merely to point out that the two different conceptions do exist and that their differences are profound. Nevertheless, both conceptions form vital parts of the

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American political tradition and also form the basis—or, rather, the bases—of the American political system as it exists today. We are now in a position to exploit our metaphor of the two tectonic plates to address some of the many puzzles about the U.S. system that strike foreign observers and that were outlined in Chapter 1.

7 An Assortment of Solutions

More than two centuries after its ratification, the hold that the

American Constitution still has on the American imagination is almost impossible to exaggerate. As we have seen already, the founding fathers, if only they knew, would be astonished as well as delighted. The Constitution is America’s secular Bible, its text reprinted endlessly in school textbooks, handy pocket editions and on antique-looking parchment scrolls. In the United States, to say of an executive act or an act of Congress that it is “unconstitutional” is to condemn it out of hand. The U.S. Supreme Court is more than a court of law in the ordinary sense. It is reminiscent of an ecclesiastical or rabbinical court, handing down judgments with something like divine authority. The fact that its members often disagree—and the fact that their views as individuals are often highly predictable—seems in no way to diminish the Court’s authority. In the twenty-first century, no president would dream of saying, as Andrew Jackson is alleged to have said in his day, “John Marshall has made his decision. Now let him enforce it.” Vox curiae, vox dei—and is treated as such even by those who may dissent strenuously from some of its judgments.

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In most countries, constitutions come and go. One of the world’s oldest and most stable liberal democracies, the United Kingdom, lacks a written, codified constitution altogether. Canada only recently acquired one. Most liberal democracies do have written, codified constitutions, but most of them are relatively easy to amend, and some of them are amended frequently. France, a liberal democracy ever since World War II, has nevertheless had two quite distinct constitutions since 1945, and most of the Mediterranean countries— Greece, Spain and Portugal, for example—have had two or more. In most democracies, the courts play a relatively limited role, if any, in constitutional interpretation, and some countries’ constitutions—that of the Netherlands, for example— specifically preclude the courts from declaring acts of parliament unconstitutional. Few constitutional courts anywhere possess anything like the powers and standing of the U.S. Supreme Court. One of the few exceptions to this general rule is the German Federal Republic, whose postwar constitution, the Basic Law, was drafted in large part by politicians and political scientists conscious of, and influenced by, the U.S. example. The American Constitution’s political architecture is even embodied in Washington, D.C.’s physical architecture, and Washington is a place of pilgrimage for Americans in a way that no other capital city is. The Capitol dominates the Washington skyline. The Supreme Court building resembles a Greek or Roman temple. Only the White House is a relatively modest affair. Americans’ reverence for their Constitution is probably further reinforced by the fact that the Constitution’s framers in 1787 chose to combine the roles of head of state and head of government in one “chief magistracy.” The U.S. president, unlike most other heads of state, plays both purely ceremonial and symbolic roles and simultaneously exercises real political power. He (not yet, sadly, a she) is monarch and prime minister at the same time. The effect is almost certainly to exalt the office far beyond what it would be otherwise; Americans are encouraged to revere the presidency while simultaneously reviling, if they choose to, the current incumbent. The portraits of dead presidents on tea towels, the existence of presidential libraries and

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the carvings on Mount Rushmore speak volumes for Americans’ devotion to the presidential office and, by extension, to the constitutional document that created it. The British sing “God Save the Queen.” It would never occur to them to sing “God Save the Prime Minister.” Americans rise unself-consciously to “Hail to the Chief.” The overwhelming majority of Americans certainly revere, or else greatly admire, the Constitution itself. Few opinion surveys bother to ask American respondents questions about the U.S. Constitution because, if they did, the answers would be so uniformly favorable; but, when questions are asked, they consistently reveal that upward of 80 percent of Americans believe the Constitution in its present form is “excellent” or “good” and have no desire to see it changed in any significant regard. Typically, a mere 5–10 percent believe either that major changes to the Constitution are needed or that the whole document should be scrapped and that something completely different should be substituted for it.1 Immigrants seeking to become naturalized citizens take an oath “to support and defend the Constitution and laws of the United States,” and the president-elect at his inauguration swears or affirms that he will to the best of his ability “preserve, protect and defend the Constitution of the United States”—not democracy as such, but the Constitution. But at the same time Americans are still the world’s archdemocrats. Large numbers of them deeply distrust, and believe they should have greater control over, the very government that the founding fathers worked so laboriously to create. Citizens of most democracies, certainly in Europe, are content to accept a long-established, taken-for-granted and humdrum division of labor between government and governed. “They” make decisions. “We” respond (including, on many occasions, negatively). But Americans are apt to give the impression that, in an ideal world, they would like to be the government. Europeans rail against their governments, frequently demonstrate against them and often hold their political leaders in total contempt; but they accept that the state—something apart from themselves—is simply a fact of

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life, something to be endured if not exactly enjoyed. Americans give every impression of expecting more, of expecting their government to do what they themselves would do if only they were in power. Many Americans’ template is one of “pure democracy.”2 This tension in American political life between eighteenthcentury constitutionalism and latter-day Americans’ constant yearning for a more truly democratic polity accounts in large part for most, though not quite all, of the puzzling features of America’s twenty-first century political system described in Chapter 1. America’s two ideological tectonic plates strain constantly against one another, slipping, sliding and grinding, often yielding paradoxical results. One of the paradoxes is obviously the curious and non-democratic restrictions placed on who can become president of the United States and for whom, therefore, the American people are graciously granted permission to vote. For their own reasons, the founding fathers imposed one of the principal restrictions at the 1787 convention, namely, their insistence that the president of the U.S. must be at least 35 years old. But it is striking that no serious effort has been made since 1787 to remove that restriction or at least to replace the age of 35 by a somewhat more modest figure of, say, 30 or 25 years, in line with the practice in most other liberal democracies and also in line with the existing age requirements for senators and members of the House of Representatives. But a more extraordinary restriction on the people’s right to choose is the insistence, also embodied in the 1787 Constitution, that the president must be not only age 35 or over but also “a natural born citizen” of the United States, thereby rendering ineligible to be president the millions of Americans who, although citizens of the U.S., happen not to have been born in the U.S. This particular provision of the Constitution has been variously described as “decidedly un-American,” “blatantly discriminatory,” the Constitution’s “stupidest provision” and its “worst provision.”3 The provision in question has meant that, among millions of other U.S. citizens, more than seven hundred Americans who have fought in

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defense of their country and been awarded the Congressional Medal of Honor have been rendered by it ineligible to become president or to be voted for for that office.4 There has certainly never been a wave of popular sentiment in favor of rescinding that provision; and, probably partly for that reason, none of the few relevant constitutional amendments that individual members of Congress have proposed over the years has ever been debated or voted upon in either congressional house. The factors contributing to the widespread antipathy toward change undoubtedly include a degree of nativist nostalgia (the president of the United States should be a “real” American, ideally born in a log cabin) and, as usual, enormous respect for the founding fathers’ ancient wisdom. (“It is a brave person who contradicts the wisdom of the Founding Fathers.”)5 Yet another restriction on the American people’s right to choose was imposed, not by the founding fathers in the eighteenth century but by Congress and a large majority of the several states as recently as the immediate aftermath of World War II, and we shall explore shortly the imposition of that novel provision. Another paradox brought about by the competing claims of constitutionalism and radical democracy is the discrepancy between the fondness for referendums in the overwhelming majority of individual states—and in many of them the fondness for initiativereferendums—and the remarkable fact that no national referendum or initiative-referendum has ever been held in the whole United States. At the federal level, the United States—unusually in the liberal democratic world—is a completely referendum-free zone. This particular paradox is compounded by the fact that American administrations from time to time urge on the leaders of other countries the desirability of holding national referendums without ever undertaking to hold a national referendum in the U.S. itself. The only approximations to national referendums in the U.S. have been those held occasionally but exclusively among farmers to determine market quotas for some farm products. The paradox is a striking one. What explains it?

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National referendums have, of course, been advocated in the U.S. from time to time. Given Americans’ enthusiasm for radical democracy, it would be astonishing if they had not. In the wake of the widening use of referendums in the American West, the progressive era saw the formation of a Non-Partisan Federation for Securing Majority Rule and a National Federation for People’s Rule, both committed to the cause of the national initiative and referendum. Two of the three main candidates in the 1912 presidential election, Theodore Roosevelt and Woodrow Wilson, espoused the referendum cause publicly, albeit somewhat tepidly. Wilson on one later occasion went so far as to say in a newspaper interview that “it is only a question of time until it [direct legislation] will be extended to the Nation.”6 Both before World War I and between the two world wars, campaigners, including some well-known political figures, pressed for the federal Constitution to be amended so that a popular vote would have to be taken before America went to war unless, of course, the country had already been attacked or invaded. In 1938, Franklin Roosevelt felt constrained to address a letter to the Speaker of the House of Representatives, which was then read out to the House: I must frankly say that I consider that the proposed amendment would be impracticable in its application and incompatible with our representative form of government. Our government is conducted by the people through representatives of their own choosing. It was with singular unanimity that the founders of the Republic agreed upon such a free and representative form of government as the only practical form of government by the people.7

Japanese aggression in Asia and Germany’s invasions of her European neighbors caused support for the “war referendum” to drain away; but the cause of the national initiative and referendum— like the cause of direct democracy generally—underwent something of a revival later in the twentieth century. At one end of the political spectrum, left-wing opponents of the Vietnam War and

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consumer groups such as “Nader’s Raiders” called for the adoption of a Voter Initiative Amendment to the Constitution, with the governor of Oregon, echoing the language of an earlier era, maintaining that the adoption of such an amendment would “serve to wrest the controls of public policy from the hands of special interest groups and hand it over to those it affects, the people.”8 At the other end of the spectrum, many conservatives and right-wing populists, including Barry Goldwater (the Republicans’ 1964 presidential nominee), Congressman Jack Kemp, Patrick J. Buchanan, Kevin Phillips and the maverick economist Arthur Laffer, arrived at the same destination via a different route. They pressed for the adoption of a national initiative procedure in the belief that it could be used to mobilize the right-wing majority that they believed to exist in the country. That majority would then be in a position to subvert the elitist liberal establishment that right-wingers believed controlled the government in Washington. Kemp told everyone who would listen that a national initiative would “allow you to vote yes or no on such issues as a balanced budget, reducing your income taxes, tax limitations and much more.” According to Laffer, “Direct democracy would supplant a faltering, overburdened system of representative democracy.”9 Several dozen members of Congress, of differing political persuasions, showed some interest in introducing a national initiative and referendum during the late 1970s, and the Senate judiciary committee actually held hearings on the matter in 1977. But nothing ever happened—or ever seems likely to. Whatever their views about government in their own state, most Americans are wedded to the nation’s existing political arrangements as embodied in the 1787 Constitution, and those arrangements do not provide in any way for direct democracy or for directly consulting the people. It is probably also the case that most Americans, despite their enthusiasm for the idea of democracy in general, recoil from the idea of holding national referendums on important issues; such referendums would admit of no compromise or delay, would be hideously expensive to orga nize, would almost certainly

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be deeply divisive and would inevitably have the effect of creating an enormous body of losers, many of whom, especially in an era of cultural conflict in America, might well feel deeply aggrieved. The existing representative system is familiar, long-established and continues, not least, to bear the founding fathers’ imprimatur. There is certainly no evidence that American citizens are clamoring for the holding of national referendums. The mere fact that the holding of national referendums in the U.S. would be extra-constitutional, if not entirely unconstitutional, of course tells against it; but, in addition, holding such referendums would require either the adoption of a formal constitutional amendment governing the holding of referendums or else ordinary legislation allowing for them; and the proposed constitutional amendment or legislation would have to pass in both houses of Congress, by either two-thirds majorities in the case of a formal constitutional amendment or simple majorities in the case of legislation, with any ordinary legislation, if the proposed innovation took that form, also having to be signed by the president. The chances of majorities in Congress or presidents agreeing to any such mea sures approach zero. Selfishly, they would be reluctant to see their own powers, status and authority diminished. Unselfishly, the overwhelming majority of them undoubtedly believe, with Franklin Roosevelt, that the frequent, or even the occasional, holding of national referendums would make effective government in a country the size and complexity of the U.S. impossible—that any such procedure would “be impracticable in its application.” The anomaly, however, remains. A political institution that prospers and is widely accepted at the state level does not exist, and in recent years has scarcely even been contemplated, at the federal level. Constitutionalism has emerged victorious in one arena, radical democracy in another. The two tectonic plates slide past one another, without in this instance causing an earthquake or even a tremor. Yet, although the paradox can be explained, it nevertheless remains a paradox—democracy thwarted in democracy’s home.

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Not for the first time, the founding fathers, if only they knew, would be delighted. Another similar paradox is less serious and also less conspicuous: the presence in more than a dozen states, but the absence at the federal level, of any established right to recall allegedly incompetent or otherwise objectionable legislators. Efforts to recall members of Congress are made from time to time, but they are contested in the courts and seem unlikely ever to be deemed compatible with the U.S. Constitution. The Constitution’s framers certainly did not want to accord voters or state legislatures any such right. As for amending the Constitution to provide for such a right, that would require the usual two-thirds majorities in both houses of Congress, and turkeys are unlikely to vote for an early Christmas, especially if they might find themselves being carved up at the dinner table. As for recalling the president of the United States, even the most partisan opponents of incumbent presidents have so far recoiled from raising that grisly prospect. The founding fathers are still entitled to sleep soundly. The founding fathers might even be surprised by the power and authority accorded in the twenty-first century to the Supreme Court and other U.S. federal courts, given that, in the Constitution itself, the founding fathers had not—explicitly at any rate— granted the courts any such sweeping authority. Still, many of them, including Madison, undoubtedly wished there to be a strong judicial branch, a branch capable of making law as well as enforcing it; and the existence of a strong judicial branch is fully in keeping with constitutionalist doctrine in contrast to more radical democratic ideas. A startling illustration of the power and authority accorded the Supreme Court was provided by events that occurred during the last two months of 2000. The people voted on November 7. A dispute followed about which candidate had carried the state of Florida. A machine recount was ordered and duly took place. On November 26, the Florida secretary of state announced that, on the basis of that recount, one of the two candidates had won by a nar-

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row margin. The losing candidate appealed to the Florida Supreme Court. That court ordered a more comprehensive recount. However, the winning candidate appealed from the Florida Supreme Court to the U.S. Supreme Court. On December 4, the U.S. Supreme Court ordered that, until the case in question had been heard, the comprehensive recount then taking place should be halted. On December 11, the case was heard. On December 12, the U.S. Supreme Court decided that there was insufficient time left for the Florida courts to organize a constitutionally valid procedure for conducting a full recount and that, therefore, the Florida secretary of state’s original decision should stand. That ended the matter. On December 13, the losing candidate conceded that he had lost. Two features of that course of events stand out. The first, mentioned in Chapter 1, is that in the end the U.S. Supreme Court decided who had won the election in question. The people of Florida did not decide. No comprehensive recount took place of the ballots that voters had cast. Separately, even though there were serious doubts about who had actually won in Florida, the people of Florida were not given the opportunity—as they would have been in most other countries—to vote again. The election was not re-run. Indeed, no consideration seems ever to have been given to the possibility of running it again. A supremely political decision—in the U.S., probably the supreme political decision—was not taken by the people but instead by unelected judges. The second feature that stands out is the almost universal acceptance in the U.S. at the time that the nine justices of the Supreme Court did, indeed, have the right to decide the Florida outcome. The thwarting of the people’s will, or at least of the people’s right to decide, did not result in rioting in the streets or the storming of the Supreme Court building. People, even those who dissented from it, accepted the court’s verdict as both binding and legitimate. The man whom the Supreme Court had, in effect, declared to be the winner was inaugurated president, without protest, a few weeks later. In the enduring contest between constitutionalism and radical democracy, seldom can constitutionalism have won such a complete hands-down victory.

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Judges in general, and the justices of the U.S. Supreme Court in particular, have for many generations played a far larger role in American government than in the government of any other country. As Tocqueville famously observed, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”10 The history of the United States, far more than the history of any other country, is punctuated by decisions of its highest court: Marbury v. Madison (1803), when the Supreme Court took it upon itself to decide that acts of Congress were unconstitutional and therefore void; McCulloch v. Maryland (1819), when the Court determined that Congress enjoyed not only the powers explicitly conferred by the Constitution upon it but also those that were implied by the powers that it had been granted explicitly; Dred Scott v. Sandford (1857), when the Court decided, among other things, that black men were not, and could not be, U.S. citizens; Plessy v. Ferguson (1896), when the Court sanctioned state laws that (allegedly) provided black people with “separate but equal” facilities; Lochner v. New York (1905), when the Court voided a state law limiting the number of hours that people could be employed during the working week; Standard Oil Co. of New Jersey et al. v. United States (1911), when the Court ordered the company’s dissolution on the ground that its activities violated the Sherman Antitrust Act; Adkins v. Children’s Hospital (1923), when the Court deemed unconstitutional a District of Columbia statute establishing minimum wages for women; Schechter v. United States (1935), one of a number of Supreme Court decisions striking down major pieces of Roosevelt’s New Deal legislation; Brown v. Board of Education of Topeka (1954), when the Court reversed its predecessors’ judgment in Plessy v. Ferguson; Baker v. Carr (1962), when the Court empowered the federal courts to adjudicate issues arising out of the apportionment of federal congressional districts; Gideon v. Wainwright (1963), when the Court determined that state as well as federal courts must respect defendants’ right to be represented by counsel; Roe v. Wade (1973), when the Court ruled unconstitutional overly restrictive regulation of abortion by several states; Planned

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Parenthood of Southeastern Pennsylvania v. Casey (1992), which to some extent qualified Roe v. Wade; and, of course, Bush v. Gore (2000). This list of important political decisions made by the Supreme Court, already long, could easily be further extended. Decisions about such matters as abortion, capital punishment and gay marriage, which are routinely made in other countries by democratically elected legislatures, are routinely, if often controversially, made in the U.S. by judges. Given that fact, it might be supposed that pressure would mount for federal judges, as well as judges in a majority of the several states, to be popularly elected. But no such pressure has ever mounted. No constitutional amendment providing for the election of federal judges has ever found its way onto the floor of either the House or the Senate. Except by a handful of academic lawyers, the issue has seldom even been discussed. One reason is probably that the Supreme Court, in particular, has never allowed itself to get too far out of step with public opinion for too long. Notably, the Supreme Court during the 1930s eventually came to treat the Roosevelt administration’s New Deal legislation with much greater respect. It has probably also made a difference that, although the membership of the Supreme Court has always included its fair share of mediocrities, it has never consisted solely of them and has often included considerable numbers of men—and latterly women—of undisputed eminence. Not least, the Supreme Court, like the presidency and Congress, retains the sanctity of having been the handiwork of the founding fathers. Providing for the election of federal judges would require a formal constitutional amendment, an amendment that two-thirds of the members of the Senate, which has the power to confirm, or not to confirm, presidential nominees for the court, would be most unlikely to vote to support. Another seemingly anomalous feature of the American system has, of course, frequently been called in question for over a century, and that is the continued existence of the electoral college, probably the only seriously clunky institution that the founding fathers managed to contrive. Few Americans can name any individual

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ever elected to the electoral college. The college never functions in a collegiate manner, even within individual states; votes, in the absence of either debate or discussion, are merely tallied. Initially intended as a device for avoiding election of the president by either Congress or the people—“The people are uninformed, and would be misled by a few designing men”—the electoral college has usually functioned in modern times as simply a device for registering the outcome of what has become in practice a straightforward popular election. Its critics maintain—and its supporters do not deny—that the existence of the college magnifies the electoral importance of the largest states. Its critics also maintain—and its supporters do not deny—that the electoral college is an undemocratic institution in the sense that, even in modern times, when all of the electors are popularly elected, the electoral-college winner may not be the individual who has won the most popular votes. On four occasions, most recently in 2000, the loser in terms of the popular vote has won in the college. On top of all that, there is always an outside possibility that, in the absence of any candidate’s winning an absolute majority of the vote in the electoral college, the election of the president will be thrown into the House of Representatives, with each state’s House delegation— California’s on the same basis as Wyoming’s—casting only a single vote. To no one’s surprise, proposals to reconstitute the electoral college or to abolish it altogether have been legion since at least the 1880s. Some six hundred proposals for amending the relevant provisions of the federal Constitution have already been introduced. The simplest reform proposed—and, on the face of it, the most straightforwardly democratic—would involve replacing the existing electoral college with a truly nationwide popular election, with all of the votes cast throughout the Union counting the same as all of the other votes. The varying sizes of the fifty states would no longer play a part. Provision could obviously be made for a run-off election if no one candidate received more than, say, 40 percent of the vote. More complicated proposed reforms include, for example, retaining the electoral college but requiring every state to

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adopt the principle of proportionality, with each state’s electoral votes awarded to each presidential candidate in proportion to his or her share of the popular vote within that state. The Constitution already entitles individual states to decide how to allocate their electoral votes, and Maine and Nebraska have already chosen to diverge significantly from most states’ established statewide, winner-take-all practice. Debates over the electoral college’s future—and over whether it should have a future—have, however, never been followed by action. In 1969, a proposed constitutional amendment providing for popular nationwide elections passed comfortably in the House but failed in the Senate. A decade later, a similar proposal failed in the Senate and never reached the House. Perhaps surprisingly, following the events of 2000, members of Congress made no serious attempt to reform the electoral-college system. Instead, they focused their attention on reforming the then existing arrangements for the stateby-state administration of federal elections. The truth appears to be that, even though the electoral college is less than a totally democratic institution, it is not a sufficiently undemocratic institution to upset most Americans. The popular winner is usually also the electoral-college winner, and even in 2000 the margin of popular votes that separated the top two candidates was modest. The electoral college is, to be sure, an odd institution, but few Americans seem much disturbed by its oddity, and any proposed constitutional amendment, whether to overhaul it radically or to abolish it altogether, is unlikely ever to win the high levels of support required in both Congress and the states—unless and until, of course, presidents begin frequently to be elected on the basis of significant minorities of the popular vote. At that point, the tension between the demands of the 1787 Constitution and the demands of democratic majoritarianism might come to be intolerable, and a constitutional earthquake high on the Richter scale might well ensue.11 The political system of the United States, as we have repeatedly seen, began life as a constitutional system, but it then had inserted into it a whole sequence of developments more consistent with the

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different ideas and ideals of radical democracy. The advance of radical democracy never entirely displaced the old constitutional structures, but it did modify the way in which many of them operated. Moreover, although the advance of radical democracy was at many points checked and qualified by the stern presence of preexisting constitutional structures, it was almost never wholly reversed. The incoming wave of democratic change seldom, in practice, receded. But in the latter part of the twentieth century, it did recede, however, with the widespread introduction of term limits, first for the presidency, then more fitfully and sporadically for elected officials in many individual states. Whatever else they are—and a case can be made out for them—term limits are by no means a democratic institution. In reality and in their effects, they are a non-democratic or even anti-democratic institution. They restrict the people’s range of choice, and they loosen people’s control over their elected representatives. It follows that their introduction in the U.S. runs contrary to almost the entire history of American political development and therefore, on that ground alone, needs to be explained. A strict limit on the number of terms any U.S. president could serve was imposed, not by the founding fathers at the Philadelphia convention in 1787, but by both houses of Congress and a large majority of the several states in the aftermath of World War II. As we saw in Chapter 3, some of the delegates at the Philadelphia convention did fear that, if presidents were allowed to serve multiple terms, America’s chief magistracy might in time be transmuted into a sort of monarchy; but, as we also saw in Chapter 3, a majority doubted whether there was any real risk that a monarchy would emerge and, in addition, most delegates to the convention, once it was clear that presidents would be elected by an electoral college and not by the federal legislative body, were quite content that presidents should serve for as many terms as the electoral college, meeting every four years, saw fit. Roger Sherman was “against the doctrine of rotation as throwing out of office the men best qualified to exercise its duties,” and James Wilson did not want good

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men “cast aside like a useless hulk.”12 That was the view of the founding fathers, and there the matter rested for roughly a century and a half. The electoral college—in practice, the American electorate as a whole—could reelect the same person as often as it chose. Most American voters, or so it would seem, apparently believed that deciding whether or not to reelect an incumbent president was their unalienable right. But shortly after World War II they lost that right. Two-thirds majorities in both houses of Congress proposed, and the legislatures of more than four-fifths of the several states subsequently ratified, the twenty-second amendment to the Constitution, limiting future presidents to serving during their lifetimes a maximum of two four-year terms. A reversal on this scale of America’s usual democratic form had few, if any, precedents. It was true that prior to 1940 no incumbent president had ever run for a third term, and many Americans, including many American politicians, undoubtedly assumed that a firm albeit informal convention had been established that no president should serve for more than two terms. But in 1940 Franklin D. Roosevelt ran for an unprecedented third term and was triumphantly reelected. Then in 1944 he ran for a fourth term and was reelected, again by a substantial margin. Had Roosevelt been a figure who was universally admired, a latter-day George Washington, this breaking of precedent might not have mattered—and almost certainly would not have led to the adoption of the twenty-second amendment— but Roosevelt was far from being universally admired. He was a deeply divisive figure, someone reviled as well as adored, and the very scale of his successes made those who reviled him, and those who feared that another similarly hateful figure might emerge in the future, determined to change the system that had made possible FDR’s end-to-end victories. Thus, Roosevelt’s many enemies sought revenge for the past and insurance for the future. The debates that took place over the amendment proposing the imposition of term limits were, almost inevitably, overwhelmingly partisan in character. Almost without exception, those who had opposed Roosevelt’s New Deal legislation favored the imposition

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of a legally binding presidential term limit, as did conservative southerners who feared that in the future a long-serving U.S. president on the FDR model might oblige Southern states to accept that black people as well as whites had the right to vote. On the other side, those who had backed the New Deal and to whom Roosevelt was a hero quite naturally opposed the imposition of any presidential term limit. In the event, following the introduction of the proposed new amendment after World War II, almost every Republican legislator in the land—both on Capitol Hill and in the several states—voted in favor of it, and almost every Democratic legislator in the land, except for a majority of conservative Southern Democrats, voted against it. The historian of constitutional amendments in the U.S. summarizes what took place: The partisan character of the presidential term-limit amendment stands out. Every Republican who cast a ballot in either house of Congress approved the mea sure. The additional votes needed to secure the two-thirds margin for acceptance came overwhelmingly from conservative, antiNew Deal southern Democrats. Only ten House Democrats outside the Old South supported the amendment. . . . This pattern of Republican solidarity and Democratic division [along sectional lines] continued as state legislatures took up the question.13

This high level of partisanship was crucial. None of the occasional proposals that had been made in previous decades to impose a presidential term limit had ever made headway because everyone knew that any such proposal would be heavily defeated. But in 1946, less than two years after FDR’s death, the Republicans gained control of both houses of Congress for the first time since the 1920s, and they also found themselves for the first time in a generation in control of a large majority of the state legislatures. Congress adopted the twenty-second amendment by the necessary two-thirds majorities in 1947, and three-quarters of the states voted to ratify it during the ensuing four years. The amendment

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in question is still in place. It clearly owes its origins, not to popular demand, but to an unprecedented and somewhat bizarre concatenation of political and electoral circumstances. Most American citizens, if they noticed the passage of the amendment at all, probably failed to notice that it did amount to a reversal of America’s hitherto seemingly irreversible democratic advance. Some, even among Roosevelt’s millions of admirers, may well have been swayed by the fact that he did seem to have violated a long-standing quasi-constitutional convention. A striking feature of the passage of the twenty-second amendment is the arguments that were adduced on the two sides of the debate. The two sides seldom addressed the same issues. Rather than confronting each other head-on, they debated at a sharp angle to each other. Those who favored limiting presidential terms declaimed against the increases in both presidential power and the power of the whole federal government that had taken place under Roosevelt, denouncing “a President who had entrenched himself in power by use of patronage and the public purse [and had] refused to vacate the office at the conclusion of two terms, but used the great powers of the Presidency to perpetuate himself in office.”14 They warned of the danger, as they saw it, that someday a long-serving president might, in effect, become a dictator. More than one of them summoned up the ghost of Adolf Hitler. Southern Democrats—not without reason, from their point of view—inveighed against the growing power of the federal government and Washington, D.C.’s encroachments upon the prerogatives of the several states. Strikingly, however, the supporters of the twenty-second amendment, with very few exceptions, carefully avoided addressing the encroachments that the amendment, if adopted, would make upon the power of the American people. It was left to the amendment’s opponents to point out that both the people’s power and their range of choice would henceforth be much circumscribed. The amendment’s opponents in fact took up the issue of its antidemocratic character as one of their principal themes. A Democrat

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from Kentucky reminded the House of Representatives that previous constitutional amendments had expanded the practice of democracy but that this one sought “to impede and curtail the fundamental democratic power of the voter.”15 An Illinois Democrat similarly pointed out that the proposed amendment was antidemocratic in that it would restrict the “right of the people to freely choose their own President.” The proposed amendment was, he insisted, contrary to the spirit of American government: “We have frequently amended our Constitution, as the need arose, to extend and strengthen the democratic processes on which our Government is solidly built. This amendment goes backward, and limits the right of the majority to choose their President.”16 The few supporters of the amendment who actually addressed the issue of its democratic credentials seem to have tacitly acknowledged the strength of their opponents’ objections, but they insisted that other, higher considerations should prevail. A Republican congressman from New York declared that the threat to our democratic processes from the abuses of autocracy and, therefore, the consummate evil in permitting complete freedom of choice to designate the same person for this office again and again transcends in importance and seriousness what I am . . . prepared to concede is an evil in limiting the freedom of choice of a free people.17

He seemed to be suggesting that democratic institutions needed to be protected from the people, almost that the people needed to be protected from themselves. Or, as one wag put it, “Stop me, before I vote again!” The sequel was as comic as it was predictable. With the election in 1952 and the reelection in 1956 of the Republican Dwight D. Eisenhower, Republicans realized with horror the enormity of what they had done. They had made it impossible for one of their own most popular presidents to be reelected for a third term. Eisenhower himself told reporters that the electorate “ought to be able to choose for its President anybody that it wants, regardless of

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the number of terms he has served,” and members of Congress began to submit resolutions calling for the repeal of the two-term amendment.18 Two decades later, another Republican incumbent, Ronald Reagan, also in his second term, dismissed the two-term limit imposed by the twenty-second amendment as “ridiculous,” adding on a later occasion that “We ought to take a serious look and see if we haven’t interfered with the democratic rights of the people.”19 In the meantime, a former president, Harry S. Truman, had reminded a Senate subcommittee that “You do not have to be very smart to know that an officeholder who is not eligible for reelection loses a lot of influence.”20 But there the matter rested—and rests. The U.S. remains one of the very few established democracies that restricts the people’s choice in this way. Two decades later, a number of individual states also ran counter to America’s usual preference for extending the people’s democratic rights by restricting, in much the same way as the twentysecond amendment did at the federal level, the right of people at the state level to choose whomever they liked as their representatives in their state’s legislature. In this instance, however, sheer partisanship played a significantly smaller role. In this instance, rather than one section of the political class being in contention with another section, a large proportion of the American public was effectively in contention with the American political class as a whole. It all began innocently enough. Before World War II, the governors of a majority of states could be reelected more or less indefinitely but served for only two years at a time. It gradually became clear, however, that two years did not give governors nearly enough time to learn their job, let alone accomplish anything, and they devoted too much of their time and energy to electioneering. As a result, four-year terms for state governors had become the norm by the 1960s and 1970s. But at the same time, and for the most part quite uncontentiously, a large number of states, roughly threefifths of the total, followed the 1951 federal example and limited their governors to two terms. It seemed a reasonable compromise:

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longer terms for governors (and sometimes other state officials) but a limited number of them. But in the late 1980s and early 1990s, the United States enjoyed—or endured—what sociologists like to call a “moral panic.” The panic was triggered, if not necessarily caused, by a succession of well-publicized scandals involving members of Congress, including several senior ones. In 1989 the House Speaker, Jim Wright, facing sixty-nine charges of violating House gift and income rules, chose to resign, the fi rst ever Speaker to do so. One of his lieutenants, the Democratic whip Tony Coelho, also resigned under similar circumstances. Members of the House, in defiance of the rules, allowed their accounts in the House Bank to become overdrawn, and members of both houses voted themselves large pay increases. Other contemporary scandals involving well-known politicians included charges of embezzlement, tax fraud, the use of illegal drugs and, inevitably, sex. The cumulative effect was to cause large numbers of Americans to become fed up, seemingly all at once, with their elected officeholders, not always as individuals but as a seemingly undifferentiated and unsavory mass. One consequence of this darkening of the national mood was a call—one that had scarcely been heard since the earliest days of the new republic—for the imposition of term limits, not merely on the president and state governors (that had already been largely accomplished) but on legislators: members of Congress and individual state legislatures. By early 1992, legislation to impose term limits had been introduced in a large majority of state legislatures, and popular initiatives to the same effect had been introduced in nineteen states—almost all those states whose constitutions allowed for such initiatives. Most of the proposals sought to impose term limits on both state legislators and members of both houses of Congress. Many of these proposals, at least the ones affecting state legislators, passed. By the mid-1990s, twenty-eight states had voted to adopt term limits of one sort or another (though in some states the limits in question were subsequently repealed or struck down by the courts). Term limits are currently in force in fifteen of the fifty states.

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Term limits for state legislators were one thing, but term limits for members of Congress were quite another. A number of states— following the precedent set more than two centuries before by the pre-1787 Articles of Confederation—sought to set limits on the terms of their entire state delegations in both congressional houses. However, proposals along these lines were always of doubtful validity under the terms of the 1787 Constitution, and they were formally struck down by the Supreme Court in 1995. If term limits were to be imposed on House and Senate members, a formal constitutional amendment would be required, and that, in turn, would require two-thirds of the members of both houses to propose imposing term limits on either themselves or their successors. The Republicans duly included in their 1994 Contract with America a pledge to introduce an amendment to the Constitution to that effect if they won that year’s congressional elections; and, following their victory that year, they honored their pledge and introduced in the House of Representatives a series of variously worded constitutional amendments embodying term limits of varying lengths. None of them, however, came anywhere near securing the necessary two-thirds majority, and the campaign to introduce term limits for Congress died a death, as did the campaign for term limits as a whole. Most Americans still held politicians en masse in low esteem, but the moral panic was over. Those two post-1945 developments—the passage of the twentysecond amendment and the imposition of term limits on legislators in some states—were provoked neither by considerations of constitutionalism nor by the demands of radical democracy. They were aberrations, driven by quite different impulses, in the one case by more or less pure partisanship, in the other by diffuse popular distaste for the whole tribe of politicians. The original 1787 Constitution did not mandate either development; both of them necessitated—or, in the case of limiting the terms of House members and senators, would have necessitated—the passage of a formal constitutional amendment. And, far from promoting the cause of people power, both had the effect—and could be seen to have the effect—of reducing it. Both could be clad by their various advocates

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in democratic garb, but neither, in reality, was a democracypromoting measure. In terms of our two tectonic plates, both were fissures caused by tangential political forces. The fact that both occurred certainly cannot be attributed to any resurgence of constitutional thinking at the expense of more radical democratic sentiments. Both, in that sense, were blips. The truth, in the end, is simple. At the beginning of the twentyfirst century, the American political system contains within it significant elements of eighteenth-century constitutionalism and, simultaneously, significant elements of its opposite, radical democracy. The system thus appears to rest uneasily on two divergent tectonic plates. It undoubtedly does rest on those divergent plates, but how uneasily does it rest on them? In the light of what has been said so far, how should we view the American system today? It is time to address those questions.

8 Democracy in America

It is no part of the purpose of this book to offer a sustained cri-

tique of the American political system—or indeed to offer a sustained paean in praise of it; many important topics, such as the respective roles of the media and special interests in American politics, have not even been touched upon. The book’s purpose, rather, has been to draw attention to some of the features of the American system that strike a foreigner as curious and also to draw attention to some of the paradoxes that stem from the endemic conflict—the conflict identified in previous chapters—between the claims of strict constitutionalism and the claims of radical democracy. It is obviously up to Americans to decide whether they want to resolve any of these paradoxes and, if so, how they want to resolve them. However, although these are matters for Americans, it would be perverse in this final chapter not to offer a few foreigner’s reflections on the U.S. system, reflections that are prompted in most cases by the grinding, creaking and groaning of our two tectonic plates. To begin with, we can take it as a given that America is not a country about to reinvent its entire political system. The American

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system is one of the most enduring in the world, having existed recognizably in its present form for more than two centuries. Few in the United States seriously suggest that the U.S. should adopt a parliamentary style of government, or that the American electoral system should be one of proportional representation, or that the presidency should be replaced by some sort of executive cabinet, or that the Bill of Rights should be radically rewritten, or that a new constitutional convention should be held in order to replace the entire constitutional arrangements put in place by the founding fathers in 1787. No constitutional amendment significantly affecting the functioning of the American system has been ratified for more than half a century, and no such amendment is currently under consideration. Talk of major constitutional change in the U.S. is largely confined to the kinds of people whom the British dismiss as “the chattering classes”—university professors, journalists, pamphleteers, bloggers and cranks. Moreover, the broad outlines of the existing system can certainly be justified as striking a rough-and-ready, perfectly tolerable balance between the competing claims of constitutionalism and all-power-to-the-people democracy—as providing the majority of Americans with ample opportunities to express and make felt their preferences while at the same time sustaining the rule of law and, in Madison’s words, “curing the mischiefs of faction.”1 One distinguished political scientist, Thomas E. Cronin, readily acknowledges the presence in the U.S. of “two clashing approaches” to modern politics and government. One of them, akin to what we have called constitutionalism, is what he calls “representative democracy,” democracy in the style of Edmund Burke and James Madison. The other, akin to our radical democracy, is what he calls “popular democracy,” democracy in the style of Rousseau and Thomas Jefferson. Cronin concludes that what exists in the U.S. today is “sensible democracy,” a hybrid model combining elements of both of those two approaches, a model that seems to serve the American people well.2 After more than two hundred years, no one could plausibly maintain that, on any criterion, the American system has been a flop.

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The mere fact, however, that the American model is indeed a hybrid brings with it attendant difficulties. One difficulty, relatively minor, is that Americans find their own political system baffling and hard to understand, probably even more so than the citizens of other democracies find theirs. The American system undergoes radical change very seldom; but it is a tremendously complicated system, even when at rest, and it manifests at almost every point the doctrinal tensions that have been described in this book. Students of American politics frequently comment on how little most Americans seem to know or understand about how the U.S. system works. The authors of What Americans Know about Politics and Why It Matters, while regretting the fact, readily acknowledge that “large numbers of American citizens are woefully underinformed [about politics] and that overall levels of knowledge are modest at best.” They note, in addition, that “despite the numerous political, economic, and social changes that have occurred since World War II, overall political knowledge levels in the United States are about the same today as they were forty to fifty years ago.”3 What the authors say is true and would be even truer if Americans were more often asked survey questions, not about discrete facts, such as the name of the incumbent president, but about features of the system as a whole, such as the role of the Supreme Court or the character of the relations between the president and Congress. Most Americans can name the incumbent president, but only small minorities can name the three branches of the federal government or know what the electoral college is.4 Another consequence of the extreme hybridity of America’s political system is arguably more important and arises specifically out of the tension between the constitutionalist assumptions underpinning the institutions laid down by the founding fathers in 1787 and the widespread belief in the U.S.—the belief that underpins many of the nation’s more recently created institutions—that the people themselves should rule. The truth, however, is that neither the American political system nor the political system of any other liberal democracy actually does allow the people to rule; liberal democratic regimes everywhere merely give citizens

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the opportunity to have a degree of influence over those who do rule. To the extent that Americans believe that they, as citizens, have been granted a God-given right to rule, they are doomed to endless disappointment—a disappointment that many Americans probably feel more acutely than the citizens of other democracies. The template in America is one of pure democracy, but reality seldom conforms to that template. Because America is a country of ideals—and because the radical-democratic ideal is so firmly entrenched in the American psyche—the discrepancy must, for many Americans, be quite hurtful and frustrating. Hence, in part, the frequent sense of letdown among American citizens and the widespread sense in the U.S. that democracy in America remains underdeveloped and unfulfilled. The political scientist Robert A. Dahl makes essentially the same point when he writes: “The beliefs of Americans in the legitimacy of their constitution will remain, I think, in constant tension with their beliefs in the legitimacy of democracy.”5 The American system has endured, it works in its own way, no proposals for changing it radically are on the national agenda at the moment, and none seems likely to be in the foreseeable future. Nevertheless, a number of academic political scientists, in particular, believe that America’s existing constitutional arrangements— using the term in its broadest sense—are significantly flawed and could be improved. Some of the issues that the critics raise are quite specific and relate to the “culture wars” of recent decades— the issues of gun control and same-sex marriage, for example—but many can be traced directly back to the primordial antithesis described in this book. Predictably, those critics who wish the United States to become, in some sense, a more “democratic” nation than it is now far outnumber those who wish it to remain loyal to the ideas and ideals of the founding fathers. Although Andrew Jackson has been dead for more than a century and a half, constitutionalists are still on the defensive. Some feel the need to defend themselves against the charge of being less than wholly enthusiastic about democracy itself.

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Scholarly and journalistic writings critical of America’s existing constitutional arrangements abound. They are worth sampling. Their authors’ principal concern is occasionally with the quality and effectiveness of American government—with, so to speak, the mechanical workings and tangible outputs of Washington, D.C.’s governmental machine—but, even when that is their main focus, they almost invariably, in addition, emphasize the American system’s defects in purely democratic terms. They complain not merely that the quality of American government is unsatisfactory but that the quality of American democracy is not all that it should be. The titles of books published in recent decades speak volumes. The following are typical: How Democratic Is the American Constitution? Does American Democracy Still Work? Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) The Frozen Republic: How the Constitution Is Paralyzing Democracy Direct Democracy Real Democracy Strong Democracy Stealth Democracy Democracy’s Discontent Democracy at Risk6

Robert Dahl—the twentieth century’s pre-eminent student of democracy everywhere—has already been quoted. He asks the question: how democratic is the American Constitution? He answers, in effect: “Not nearly democratic enough.” He believes that the only legitimate constitution for a democratic people “is one crafted to serve democratic ends,” and he believes that the U.S. Constitution is not such a constitution.7 One of his principal concerns is with political equality, and he believes that the biases in favor of small states that the founding fathers built into both the Senate and the electoral college militate heavily against that equality. As Dahl points out, the vote for his or her U.S. senator of someone

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who lives in Carson City, Nevada, carries roughly seventeen times the weight of the vote of someone who lives only a few miles away across Lake Tahoe in California. An Alaskan’s vote for a member of the U.S. Senate carries fifty-four times the weight of a California resident’s. Dahl regards the inequality of representation revealed by figures like these as constituting “a profound violation of the democratic idea of political equality among all citizens.”8 For similar reasons, he regards European-style electoral systems, many of them proportional, as being superior to the American (and British) simple-plurality electoral system, based on singlemember districts. As a democrat, Dahl also deplores the power of the courts in the political system. Their power extends, and in his view should not be allowed to extend, far beyond the upholding of basic rights. “If,” he asks, “a law has been properly passed by the law-making branches of a democratic government, why should judges have the power to declare it unconstitutional?” He maintains that a contradiction exists “between imbuing an unelected body—or in the American case, five out of nine justices on the Supreme Court—with the power to make policy decisions that affect the lives and welfare of millions of Americans.”9 Left to his own devices, Dahl would abolish the electoral college, vary the size of individual states’ representation in the U.S. Senate and severely restrict the courts’ powers of judicial review. He refers sadly to “a political system so opaque and so at odds with general conceptions of public virtue that it weakens both civil understanding and citizens’ confidence in our political institutions.”10 But Dahl does not suppose that many, or indeed any, of his preferred changes to America’s constitutional arrangements will ever be made. He acknowledges that there is a “sacred aura” about the American Constitution, and the procedures in place for amending the Constitution are, in practice, all but insuperable, especially if any amendments proposed would have the effect of depriving individual states and incumbent officeholders of the powers and prerogatives they currently enjoy.11 Dahl’s wish list remains just that:

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a wish list, with few, if any, of his desired reforms ever likely to be implemented. Dahl in the end is quite gloomy. Sanford Levinson, a professor of constitutional law, is far more ambitious and also considerably more optimistic. In his view, the U.S. Constitution, mainly its 1787 components, is now so out of date and unfit for purpose that it should be replaced in its entirety, or in many of its specific provisions, and he argues that the American people as a whole should be given a say in the matter. Because he believes that ultimately a new constitutional convention should be summoned, he does not feel constrained to pronounce on some of the issues that he acknowledges any new convention would need to address: for example, the extent of judicial review and the desirability or otherwise of repealing the twenty-second amendment. He does, however, wonder whether America really needs a federal Congress comprising two separate chambers (noting that the legislatures of many other democracies are unicameral) and also whether the president should continue to be provided with a veto power that majorities in both houses of Congress find so hard to overcome. On other points, he is more categoric. He reckons that the Senate as presently constituted “represents a travesty of the democratic ideal” and agrees with Dahl that the power of small states relative to large should be substantially reduced.12 Also like Dahl, he believes passionately that the electoral college should be abolished and replaced by a direct, unmediated popular vote, possibly with a runoff to ensure that the person elected has the support of an absolute majority. More ambitiously, he believes provision should be made, as in parliamentary systems, for removing from office a president who is merely incompetent, even if he or she has not been convicted of “Treason, Bribery, or other high Crimes and Misdemeanors.” Levinson also advocates either fi xed terms or mandatory retirement ages for Supreme Court justices and the abolition or relaxation of the existing constraints imposed by the Constitution on those who are eligible to be elected to the House, the Senate and the presidency. He would certainly abolish the requirement

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that any person elected president must have been born in the U.S. He dismisses that particular requirement as “an indefensible prohibition.”13 But, above all, Levinson is scathing about Article V of the 1787 Constitution, the article that sets out a variety of means for amending the Constitution while at the same time rendering certain crucial provisions of that same Constitution, in practice, unamendable: Article V constitutes an iron cage with regard to changing some of the most important aspects of our political system. But almost as important is the way that it also constitutes an iron cage with regard to our imagination. Because it is so difficult to amend the Constitution—it seems almost utopian to suggest the possibility with regard to anything that is truly important—citizens are encouraged to believe that change is almost never desirable, let alone necessary.

An important aim of his book, he adds, “is to challenge this complacency and to liberate us to think of alternatives.”14 He hopes that ultimately sufficient popular pressure can be generated to insist upon the summoning of a new constitutional convention, the findings of which would then be submitted to the people in a national referendum. Of course, as he tacitly concedes, he writes more in hope than expectation. Both Dahl and Levinson favor drastic changes in America’s constitutional structure, changes that are overwhelmingly prodemocratic in their central tendency. Nevertheless, it is striking that both of them, without ever saying so, show themselves to be relatively conservative in the sense that neither of them has any truck with direct-democratic devices (beyond Levinson’s insistence that any new constitution should be ratified by the people as a whole). Neither of them advocates the introduction of the initiative-referendum or the recall as a standard operating procedure at the federal level. Neither of them even addresses the question of whether such devices ought to be introduced. In other

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words, while Dahl and Levinson are both staunch democrats, neither is in any sense a radical democrat. Had they been present at gatherings of truly radical democrats at the turn of the last century, they would probably have felt out of place. Neither sounds remotely like William Jennings Bryan. But others do. Probably the most radical of all the latter-day proponents of truly radical democracy is Benjamin R. Barber, like Dahl a political science professor. Barber’s vision of “strong democracy” goes far beyond tinkering with, or even drastically overhauling, the existing U.S. Constitution (which he never mentions and scarcely alludes to in his principal work on the subject). His vision is of a political community that, whatever its geographical dimensions, is a genuine community, whose members share obligations as well as rights. Strong democracy, he says, “means autonomous activity by mobilized individuals who aspire to control their own lives and to affect the character of the communities in which they live.”15 Whereas Dahl and Levinson share a belief in both the necessity and the desirability of representative institutions in a modern democracy, Barber’s views on the subject are excoriating. “The representative principle,” he believes, “steals from individuals the ultimate responsibility for their values, beliefs, and actions.” He agrees with Rousseau that “the instant a people allows itself to be represented it loses its freedom,” adding: “Men and women who are not directly responsible through common deliberation, common decision, and common action for the policies that determine their common lives are not really free at all, however much they enjoy security, private rights, and freedom from interference.”16 In place of the representative institutions that in his view disfigure the world’s “thin” democracies—that is to say, all the democracies that currently exist in the real world—Barber would create a complex of institutions designed to promote participation and active community engagement. Swiss democracy is clearly his model, insofar as he has one. His strong democratic institutions would include “a national system of neighborhood assemblies in

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every rural, suburban, and urban district in America,” local, regional and national “television town meetings,” a program to facilitate civic education, the selection of a wide range of officeholders by lot instead of election (“sortition,” as he calls it), an appropriately designed national initiative and referendum process (he applauds the use of the initiative-referendum by many American states) and the introduction of universal national ser vice for both military and civic purposes: “National ser vice is a vital constituent in the relationship between rights and duties under a strong democratic regime.”17 Many of Barber’s ideas echo those of the radical democrats of the progressive era, including those of Theodore Roosevelt. It would be hard to imagine a vision further removed from that of the founding fathers. Barber’s ideas and proposals are atypical only in their sweep. He speaks for many. Lawrence K. Grossman in The Electronic Republic takes it for granted that the ongoing revolution in electronic communications will transform the workings of American democracy, and he takes it for granted, too, that a transformation along these lines is to be desired. Just as modern Switzerland is Barber’s model, ancient Athens is Grossman’s. He quotes Aristotle to the effect that “democracy . . . will be best attained when all persons alike share in government to the utmost” and goes on to ask: Is there a new role to be played at the federal level by officially authorized national plebiscites, referenda, and ballot initiatives in our representative republic? Soon it will be possible to have instant tele-voting from home or workplace, using personal computers and microprocessors. With a system of personal codes and the right telecommunications technology in the hands of all citizens, no longer would there be a practical reason why voting should necessarily be limited to the first Tuesday after the first Monday in November. The people could be asked to vote electronically on any specific mea sure any time a public response is required.18

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Grossman modestly suggests that it is for others to decide whether or not e-referendums should in fact be introduced, but it is clear where his heart and instincts lie. Similarly, Daniel Lazare in The Frozen Republic (subtitled How the Constitution Is Paralyzing Democracy) suggests that someday the House of Representatives, the most democratic of America’s national institutions, should destroy the founding fathers’ ancient, anti-democratic political structures by staging a nonviolent prodemocratic coup: Not just the Constitution would be toppled, but so would checks and balances, separation of powers, and the deeply inculcated habit of deferring to the authority of a group of eighteenth-century Country gentlemen. . . . The traditional American distrust of political power, rooted in the ideology of the eighteenth-century Country opposition, would undoubtedly disappear as well. When power is wielded by others—judges in long black robes, politicians in distant Washington, and so on—it’s scary. But when wielded by the people themselves, in as simple and unencumbered a fashion as possible, it is simply a tool for getting things done. Rather than dispersing power, the people would have reason to see that it was concentrated in their own hands. Rather than an object of fascination and fear, it would become an object of utility.19

Lazare’s is an authentic American voice. Like those just quoted, almost all of those who worry about the state of the American system would like to see it move in a more democratic direction, some to a relatively modest degree, some of them more radically and rapidly. It is left to a minority to argue the case for checks and balances, the separation of powers and the Constitution in something like its present form. Writers on this side of the debate see themselves as resisting the incoming democratic tide, even if they are usually reluctant to say so in so many words. Fortunately for them, real power within the existing system—in the form

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of reverence for the 1787 Constitution and the Constitution’s Article V, which makes constitutional amendments exceedingly difficult to achieve—is firmly on their side. One of the relatively few modern commentators unashamedly constitutionalist in outlook is the journalist George F. Will. He favors term limits, but he favors them, not as a means of bringing elected politicians closer to the people and returning them as quickly as possible to the people, but rather as a means of preventing politicians from becoming and remaining a self-serving class, preferring their own interests to those of the nation and intent, by almost any means and above all else, on securing their own reelection. In his 1990s book Restoration, Will seeks by means of term limits to reduce the chances that members of Congress will function merely as self-seeking vote-maximizers and to increase by these means the chances that Congress can be restored to its original role as a genuinely deliberative assembly. He acknowledges that “term limits limit choices, and hence are an excision . . . from the sphere of civil freedom,” but he believes that, in the interests of promoting disinterested deliberation, they are a defensible excision.20 Will aligns himself firmly with the framers of the Constitution and against the claims of radical democrats. He also aligns himself, not less, against the claims of those who, even if not radical democrats, nevertheless maintain that any elected representative’s principal duty is to serve the interests of his or her constituents. He approves wholly of the framers’ determination to produce, in his words, “representation characterized by the virtues of calmness, reasonableness, civility, detachment and longheadedness—a due concern for the long term.” The framers’ delicate task, he says, “was to devise a system of representation sustained by the people’s support but insulated from the people’s merely momentary inclinations.”21 In Madisonian mode, and denoting as a faction “any compact, intense and orga nized interest group,” Will derides factions in general and, more specifically, their clout:

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The test of a faction’s clout is its ability to get its appetites translated into government action with maximum speed and minimum alteration. The test is the faction’s ability to reduce government, on as many issues as possible, to no more than a recording, ratifying and brokering agency. It is understandable, if not admirable, that factions have this aspiration. What is dismaying is the fact that today’s servile government aspires to no higher purposes than those of recording, ratifying and brokering.22

Democratic representatives, in Will’s view, should be encouraged, and also enabled, to eschew responsiveness—“a telltale word”—in the interests of deliberation prior to action.23 Insofar as the framers of the Constitution sought to inhibit “the direct and prompt fulfilment by government of popular desires,” Will reckons they were right—even if, to that extent, they could be, and are, deemed anti-democratic.24 Will, wisely, has been content to remain a journalist. In the current American political climate, he would have found it very difficult, if his views were known, to secure election to public office. Few, even among academic political scientists, are as forthright as he is. In Chapter 5 of the present book, “The People Move Upstairs,” we noted the extent to which, uniquely in America, the cause of radical democracy flourished. Not only were more and more Americans enabled to vote, but they were enabled to vote for a wider and wider range of public officials, including judges, and in many states they could take advantage of provisions for initiatives and referendums. They could even vote to determine whom the political parties should nominate as their candidates. Some states went further and allowed for the recall of public officials. The democratic spirit was abroad. The people demanded to be heard. They were heard. But perhaps they were not saying quite what historians suppose. An important body of recent research suggests that the American people today are far less keen on radical, direct democracy than its

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proponents make out. Furthermore, the same body of research also suggests, by implication, that during the last century but one and especially during the progressive era, the cause of radical democracy may possibly have thrived, not because ordinary, nonpolitical Americans were desperate for it but because politicians and campaigners, acting in the name of the people, either honestly believed the people actually were desperate for it or else judged “power to the people” to be a glib and attractive slogan, an easy way of currying popular favor. In other words, the new research suggests that the rise of radical democracy in America may—no one can know for sure—have been at least as much an elite-inspired phenomenon as a genuinely popular one. Perhaps American politicians and publicists—more than their opposite numbers in other countries—sought to cultivate and fertilize the grassroots mostly in order to be able to harvest the resulting produce for themselves. Two political scientists at the University of Nebraska–Lincoln, John R. Hibbing and Elizabeth Theiss-Morse, undertook in the late 1990s to establish what Americans thought and how they felt about the relationship between themselves as citizens and their elected representatives in Congress and the White House and also, more generally, the institutions of the federal government. The book the two scholars produced was called, misleadingly, Stealth Democracy—misleadingly because the book has almost nothing to say one way or the other about stealth and a great deal to say about ordinary Americans’ attitudes toward politics and politicians. The authors do not take sides in the long-standing debate between constitutionalists and radical democrats, but they are certainly extremely skeptical of the notion that radical democracy is what the majority of the American people really want. Whatever John Dewey may have said, ordinary Americans, it seems, do not believe that the best cure for the ills of democracy is more democracy.25 On the basis of focus-group discussions that took place across America as well as the results of a nationwide survey, Hibbing and Theiss-Morse report that Americans’ suspicions and dislike of the federal government, which do exist, are a result of their belief—a

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belief they share with George Will—that too many American politicians are self-serving individuals, who make decisions in their own interests rather than the people’s. They dislike politicians’ perceived connection with special interests. They find the open disagreements among elected politicians both distasteful and irrelevant: distasteful because they dislike their acrimonious tone and irrelevant because a great deal of what divides one elected politician from another seems to have nothing to do with anything that concerns them personally. A large proportion of Americans, according to Hibbing and Theiss-Morse, harbor the illusion that there exists such a thing as “the common good,” that everyone is agreed on what it is and that the bickering of rival politicians gets in the way of what they should be doing, which is striving to achieve that common good. In short, most people deplore “the influence of special interests, the cushy lifestyle of members of Congress [and] the bickering and selling out on principles.”26 Believing all that, citizens in prodigious numbers go on to tell pollsters that they believe the people have too little power and should be given more. According to Hibbing and Theiss-Morse, however, the reality is different. What citizens really want is to be governed by “empathetic, non-self-interested decision-makers”— men and women who think and feel like ordinary Americans and who are definitely not in it for what they can get out of it.27 And those empathetic, disinterested individuals need not be, and perhaps ought not to be, elected officials. On the contrary, Americans in large numbers quite like the idea of the country’s being run by successful business people and/or commissions and boards of disinterested experts. The unelected Federal Reserve Board, for example, is held in far higher esteem than Congress. “When people are unhappy with processes, they often believe something—anything— ought to be done,” and the “anything” in question can easily include “the desire to empower entities virtually unconnected with the people.”28 More than that, although citizens tell pollsters that they would like the people at large to have more power, they show no disposition

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whatsoever to enter the political arena themselves, whatever form the political arena may take, and they have no confidence in the ability of the people at large to make decisions in the nation’s best interests. In other words, they themselves do not wish to opt in, and they also mistrust the capacity, knowledge and wisdom of their fellow citizens. Apparently, although people did laugh, no one actually demurred when one participant in a focus group said: robin: People aren’t that bright. [Laughter.] No, seriously. Have you ever worked with the public? There are people, I mean they’re just not that bright. . . . There’s a problem when we have people graduating from high school who can’t read. . . . A weakness of the people is that we’re not bright enough to get the picture, the big picture, or even the little picture sometimes.29

Intelligence apart, other participants in Hibbing and Theiss-Morse’s focus groups reckoned that many, probably most, of their fellow citizens, including possibly themselves, were ultimately too parochial and self-interested to be trusted to make important national decisions: michelene: I’m really limited, you know. I have tunnel vision because what I care about is what’s going on in my world. I care about what’s happening in [her hometown]. I don’t really care what’s happening in Washington, D.C. mike: Well . . . are we too big to be governed by a democracy? pam: I don’t think we’re too big. I think we’re too greedy and too self-centered, that we’re not up to make sacrifices that it would take for us to be truly governed by a democracy.30

The inference Hibbing and Theiss-Morse draw is that, broadly, Americans want to be governed by their betters, provided their betters are genuinely disinterested and public-spirited (which cur-

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rently they believe them not to be). In other words, the people are less pro the people than anti America’s existing elites. Unsurprisingly against that background, and whatever they may tell pollsters, most Americans have no real interest in expanding direct democracy’s orbit. They are not radical democrats. Most of them, like the citizens of most democracies, do not have strong views on most issues, are not desperately interested in public affairs and simply want to be left to get on with their lives. Many of them dislike the conflictual nature of politics. According to Hibbing and Theiss-Morse, “The last thing people want is to be more involved in political decision making.”31 Their research findings suggest that the American people are “anything but wild-eyed direct democrats.”32 The authors’ conclusions are both robust and uncontradicted by better evidence: It is true that people are skeptical of the professional political class. We are in total concurrence with conventional wisdom on this point. But the notion that the people are champing at the bit to get back into politics on a personal level is simply wrong. The truth of the matter is that the people themselves, not just arrogant members of the political class, have sizeable reservations about empowering ordinary people. . . . We are certain that as much as they would like to weaken existing, allegedly self-interested elites, people do not want to empower ordinary Americans. Populist [i.e., radical democratic] reforms will not lead to a more popular and legitimate government because they are not what the people want.33

In a nod in the direction of traditional constitutionalism, the authors add that “pushing people to be more involved in politics and political decision making will not lead to better decisions, better people, or a more legitimate political system.” People, notably radical democrats, who think otherwise are, in their view, “misguided.”34 Although Hibbing and Theiss-Morse do not address historical issues, their findings are at least consistent with the supposition

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that the populists and progressives of an earlier era were equally misguided—in some cases possibly deliberately so—about the American people’s actual beliefs at that time. Certainly there is little reason to suppose that, as a result of the post-Jacksonian succession of direct-democratic reforms, America is blessed today with better decisions, better people and a more legitimate political system than it was in previous generations. Extensions of radical democracy have so far not wrought miracles. We commented earlier on the high esteem in which the U.S. Supreme Court is held by Americans, despite its often partisan makeup and despite its often controversial decisions. In that connection, it is worth noting that one of Hibbing and Theiss-Morse’s additional findings is that the Supreme Court probably owes some, perhaps a great deal, of its continuing legitimacy to the fact that it conducts its business behind closed doors. Americans associate politicians with open and often vociferous public debate and dislike politics and politicians partly for that reason. But the nine justices do their business in private. “The Court [unlike Congress] conceals disagreements masterfully. Debates and compromises are not exposed to the public. Disagreements are private or contained in written, scholarly prose.”35 Quite possibly, the 1787 Philadelphia convention owed, and still owes, some its legitimacy to the fact that it conducted its business behind closed doors and windows, with armed men standing guard outside. One trouble with transparency is that people are frequently repelled by what they see. As we have just seen, most of the more radical critics of America’s present political arrangements—especially in the ranks of academia—doubt whether radical change is really possible. Most of them incline, albeit reluctantly, toward pessimism. However, there are some features of America’s present arrangements that strike a foreigner—and in some cases large numbers of Americans—as being, at best, unfortunate and, at worst, outrageous. Several of them would appear on the face of it to be remediable. One, not so far mentioned in these pages, is the role that money plays in American political life. Democratic politics is everywhere

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expensive, but in the United States the expense is colossal. The mega-rich and even the more modestly rich are hugely advantaged in the race for nominations. They are further advantaged in postprimary general election races. Lavish spending by no means guarantees electoral success, but it certainly increases the chances of it. Those Americans, the great majority, who are less well off and who cannot finance their own campaigns, are forced to spend extraordinary amounts of time, energy and, indeed, money in raising the campaign funds that they need. Many politicians, not least scores of incumbent officeholders, become effectively dependent upon the individuals and organizations that donate money to their campaigns. There are no effective controls, at any level, on who is allowed to fund election campaigns and on how much campaign organizations are permitted to spend. Candidates for election are allotted neither free air time nor free advertising space to enable them, however impoverished, to make their case. A mockery is made of any idea of political equality. The extravagance of this free-forall—or, rather, this very-expensive-for-all—is replicated in no other established democracy. Almost all liberal democracies, in one way or another, cap spending, limit the amounts that donors can donate and/or provide funding out of the public purse for parties, candidates and campaigns. None of these alternative arrangements is perfect, but they all have the effect both of leveling the electoral playing field (to use the cliché) and, more important, of reducing the role that money plays in the actual conduct of government. The role that money plays in American politics strikes foreigners as obscene. It strikes an overwhelming majority of Americans the same way. Opinion surveys consistently report that upward of 90 percent of Americans resent the role that money plays in U.S. politics and would welcome radical campaign-finance reform. There are many obstacles to reform, including the fact that those who benefit from the current arrangements are precisely those who would have to change them; but no obstacle is more formidable than the U.S. Supreme Court. In its famous (or notorious) ruling in the case of Buckley v. Valeo (1976), the Court decided that Congress

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had no power to limit the amounts of money that either candidates or interest groups could spend in election campaigns or in the course of promoting other political causes. In particular, candidates for office could spend as much of their own money as they liked in the course of promoting their own campaigns. The Court maintained that across-the-board congressional proposals to limit campaign spending violated the first amendment to the Constitution, which bars Congress from making any law “abridging the freedom of speech.” More recently, in Citizens United v. Federal Election Commission (2010), the court, again citing the first amendment, decided that, whatever Congress may have said, corporate bodies enjoy the same free-speech protection as individuals and are therefore constitutionally entitled to spend as much of their own money as they like on “electioneering communications” that advocate the election or defeat of candidates for federal office. Yet again, in Citizens United, constitutionalism scored a decisive victory over radical democracy (or, it might be thought, over any other kind of democracy). Perhaps one day the Supreme Court will reverse itself and consign both Buckley v. Valeo and Citizens United v. Federal Election Commission—along with the long-defunct Plessy v. Ferguson—to the dustbin of history. Both certainly ought to be so consigned. Constitutionalism is also in the ascendant in the case of determining disputed election outcomes. The disputed presidential election of 2000 and its sequel, Bush v. Gore, made that clear. The people voted. The Court decided. The people amazingly—and seemingly reverentially—acquiesced in the Court’s decision. Since 2000, Congress has enacted a variety of reforms in the details, some of them important, of electoral administration; but neither Congress nor anyone else has taken steps to ensure that in the end the people, not an unelected court of law, should decide who the president should be or, indeed, who should be the holder of any other elective office. As we noted in Chapter 1, most democratic jurisdictions give their courts the power to determine that the outcome of an election is subject to reasonable dispute and that there are good grounds for doubting whether the declared winner actually

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won; but most democratic jurisdictions deny the courts the power, in cases of dispute, to determine who was the winner. The only power judges have, if they deem there to be reasonable doubt about the identity of the true victor, or if they believe the conduct of the election to have been flawed in some material way, is to refer the final decision back to the people. That would seem to most democrats—not just radical democrats—to be where the final decision properly belongs. It seems odd to an outsider that it does not belong there in the United States. The issue of the future of the electoral college is more vexed. Many, like Robert Dahl and Sanford Levinson, attack it. Few defend it, but ever fewer think there is any chance of abolishing it and replacing it with a straightforward form of direct election. Members of Congress from small states stand in the way of reform in the House and Senate. Small states themselves stand in the way of reform elsewhere. Americans may, or may not, want to console themselves with the thought that similar potentially distorting mechanisms exist in other countries. In countries such as Great Britain, which share with the U.S. the simple-plurality electoral system based on single-member districts, parties occasionally win a majority of parliamentary seats without having won a plurality, let alone an absolute majority, of the popular vote. Since World War II, this has happened twice in Britain, in 1951 and again in one of two elections held in 1974. In countries with proportional voting systems, it can happen that the governing administration formed after a national election is not the one that a plurality or majority of voters would have opted for if they had been given that particular option. In those countries, voting by voters and the formation of governments by party leaders are related but distinct processes. However, in a system like that of the United States, with an undivided one-person chief executive, it does seem odd that the people’s votes are not simply counted and summed and the winner declared on that basis. That is the way the French elect their president. Less vexed, at least in principle, should be the main issue relating to eligibility for election to the U.S. presidency: the barring

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from election of adult U.S. citizens not born in the United States. Although few Americans defend that particular constitutional provision, remarkably few seem overly concerned about it. It strikes a foreigner, nevertheless, as being not only indefensible but a gross violation of the most elementary democratic principles. It prevents millions of bona fide citizens from running for the highest office. It prevents even more millions from voting for them. It also substantially diminishes the size of the talent pool from which presidential and vice presidential candidates can be drawn. No other democracy places any such restriction on eligibility to hold its highest office. If people in other countries choose not to vote for someone who was not born in their country, that is their right; but, if they decide they want to vote for such a person, that is also their right. All that is required is an amendment to the fifth paragraph of Article II of the 1787 Constitution deleting the two words—the two offensive words—“natural born.” The passage and ratification of such an amendment strike a foreigner as highly desirable. They also seem not beyond the bounds of possibility, given that few members of either house of Congress both seriously aspire to the presidency and, simultaneously, fear that they might be defeated by a U.S. citizen born in some other country, and given also that a large proportion of the several states, including many of the smaller ones, contain substantial numbers of foreign-born citizens of voting age. The twenty-second amendment to the Constitution—the one that prevents presidents from serving for more than two terms—is another anomaly. It is anomalous both in the sense that a presidential term limit was consciously rejected in 1787 and was adopted only in 1951 and also in the sense that such limits are relatively rare outside the U.S. Few long-established liberal democracies see the point of them. Like the Constitution’s “natural born” provision, the presidential term limit offends against democratic principles and at the same time reduces the size—and also the potential quality—of the pool of talent available to hold the highest office. As it happens, the present writer, had he been an American citizen,

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would not have voted to elect President George W. Bush to a third term in 2008, but he would have objected strenuously to being denied the right to do so. Leaving aside issues of principle, the provisions of the twentysecond amendment have an additional disadvantage, one related not to democracy as such but to the conduct and quality of American government. Thanks to the twenty-second amendment, any president, once reelected, “becomes the present that is tomorrow’s past.”36 Any president, in other words, who succeeds in winning reelection is at once a lame duck and someone who beyond any doubt will, sooner rather than later, be a dead duck. And everyone knows it. Inevitably, the resulting odors of morbidity and mortality become ever more pervasive as time passes, especially during the last half of a president’s second term. Fewer and fewer in Congress and elsewhere—including the leaders of foreign countries— will want to negotiate long-term deals with a president who may not remain in office long enough to fulfill his or her side of any bargain; as always in human affairs, reciprocity requires continuity or at least some reasonable prospect of continuity. Moreover, as time passes, senior and not so senior men and women in the executive branch, conscious that their current boss has no future, will begin to contemplate their own; they become ever more liable to depart. For the same reason, recruiting able men and women to executive-branch posts becomes harder and harder. The Senate may at the same time display an increasing reluctance to confirm a lame duck’s nominees to both executive-branch posts and the judicial bench, and leaders in both houses may become increasingly disposed to write bills specifically designed to provoke presidential vetoes or, alternatively, bills that they know that the president for political reasons cannot veto. Not least, as the incumbent commander-in-chief prepares to lay down his commander’s baton, members of Congress may be tempted to intervene more assertively in purely military matters. Second terms are almost invariably somewhat difficult for reelected U.S. presidents. The twentysecond amendment all but guarantees that they will be exceedingly

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difficult. Is the quality of American government improved thereby? It seems doubtful. But we return to our two tectonic plates. Another idiosyncratic American institution that raises the kinds of issues discussed in this book is the filibuster or, more precisely, the rules obtaining in the U.S. Senate that enable a minority of senators to prolong proceedings more or less indefinitely and to obstruct and even block the passage of legislation, including legislation that has passed the House, unless sixty senators—out of 100—vote to invoke “cloture” as a means of time-limiting debate. In the absence of cloture, the filibuster can be used for other purposes as well: for example, to delay or block confirmation of presidential nominees for federal judgeships. In fact, actual filibusters take place only rarely as it is now generally accepted that, in order to pass the Senate, any significant measure that is also highly controversial must command the support of not merely a majority of senators but of a three-fifths supermajority. The claims of strict constitutionalism would seem to favor both the filibuster and, along with it, this supermajoritarian requirement. The founding fathers in 1787 deliberately designed the Senate to act as a check on the popular will as manifested in the House of Representatives. That was why senators were to be elected by the state legislatures rather than directly by the people and why individual senators were to serve for unusually long six-year terms. The members of the Senate and the people were to be kept a decent distance apart. As Edmund Randolph put it, “If [the Senate] not be a firm body, the other branch being more numerous, and coming immediately from the people, will overwhelm it.”37 However, since the passage of the seventeenth amendment, members of the Senate also “come immediately from the people,” and the individual states that the senators represent no longer enjoy the nearsovereign powers that they once enjoyed. Two modern-day political scientists observe that the filibuster, although never envisaged by the founding fathers, may nevertheless, by accident, give expression to their original intentions: “Perhaps ironically, the [Senate’s present-day] rules remain as protections while other institutional

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safeguards the Framers put into place have become enervated or disappeared with the passage of time. If anything, Senate rules and practices concerning unlimited debate have become more important as the Senate has evolved.”38 Against that constitutionalist view, the robust claims of radical democracy are equally clamant. Why should a minority in the Senate be allowed to thwart the will of majorities in both the Senate and the House? Why should the tail be allowed to wag the dog in this absurd fashion? In 2010, a reform-minded U.S. senator was emphatic on the point: I do not see how we can effectively govern a 21st century superpower when a minority of just 41 senators can dictate action—or inaction—not just to the majority of senators but to a majority of the American people. This is all the more true when you consider that those 41 senators could come from small states and represent as little as 15 percent of the American population. This is not democratic. Certainly, it is not the kind of democracy envisioned and intended by our Founders.39

Whether the senator was right to call in aid the nation’s founders is a moot point. On the one hand, Alexander Hamilton in one of the Federalist Papers expressed vehemently his opposition to minority rule: “To give a minority a negative upon the majority (which is always the case when more than a majority is requisite to a decision) is, in its tendency, to subject the sense of the greater number to that of the lesser number.” And, furthermore, he maintained that to give any minority such a veto would be to run the risk of lodging excessive power in the hands of “an insignificant, turbulent or corrupt junto.”40 But, on the other hand, at least some of the delegates to the Philadelphia convention, if they had thought about it, might well have approved of the use of the filibuster under some circumstances. The filibuster certainly had its defenders in the early years of the republic. In this instance, as so often, history provides no clear guidance.

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Be that as it may, senators in recent decades have often voted by simple majorities in favor of amending the existing Senate rule to enable cloture to be achieved more easily, but on every occasion they have been thwarted by a minority sufficiently large to block substantial change. Enough of their colleagues have feared losing the power to block the passage of measures they strongly oppose or—perhaps in addition—have been anxious to retain their status and power as individuals and their ability to use the threat of a filibuster as a bargaining chip in their dealings with others. In any case, cynics observe that many senators in the end are evidently more interested in outcomes than in procedures. They are pro-filibuster when that device suits their particu lar purposes, anti-fi libuster when it does not. In this connection, as so often, constitutionalism in the form of checks and balances is in the ascendant—and seems likely to remain so. Whatever else it is, the filibuster can hardly be construed as a democratic device, let alone a radicaldemocratic one. The referendum and the initiative, as they operate in the U.S., raise different kinds of issues. Reasonable people can reasonably differ—and do differ in every democratic country except Switzerland— about the wisdom or otherwise of utilizing the referendum and the initiative-referendum as devices for policy making on specific issues, especially issues of great importance. A strong case can be made either way, that in favor by the radical democrat, that against by the constitutionalist. But what is remarkable about the U.S., as we noted in Chapter 1, is that no nationwide referendum has ever been held in the United States even though referendums are held, and are sometimes constantly held, in all but one of America’s fifty states. Constitutionalism reigns at the federal level. Direct democracy, in various forms, reigns at the state level. One tectonic plate slides under the other without uplifting it. In particular, it seems strange that, whereas the constitution of every state but one provides for a referendum in the case of proposed amendments to that state’s constitution, the people of the United States as a whole are allowed no direct say whatever in connection with proposed

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amendments to the U.S. Constitution. Even those political philosophers who are most dubious about the use of referendums to decide more routine policy matters, even quite important ones, are often prepared to concede nevertheless that their use is appropriate in connection with decisions about how the nation itself should be ruled, about what the nation’s “rules of the game” should be. On the face of it, Americans might at least want to consider whether the present mechanisms for amending the American Constitution are any longer, in a fully fledged democracy, the appropriate ones. Another conspicuous anomaly in America’s political arrangements—or at least one that ought to be conspicuous and remarked upon—is the popular election of judges in a large proportion of the several states but their uniform non-election at the federal level. If the case for judicial elections is compelling at the state level, why is it not so at the federal level? Conversely, if the case for appointing judges rather than having them elected is compelling at the federal level, why is it not so at the state level? The anomaly in this case is underscored by the fact, also remarked on in Chapter 1, that the election of judges in many states is a practice unique to the United States, one that was frowned upon, and indeed scarcely contemplated, by the founding fathers and is also one that appears to violate—in greater or lesser degree, depending on the state—one of the most fundamental tenets of the rule of law, namely, the principle that judges should be independent, and be seen to be independent, both of the other branches of government and of the people. Traditional constitutionalism once again reigns at the federal level but fails to hold sway in many of the individual states. In this instance, our two tectonic plates do not collide because they do not come into contact with each other at all. What of the future? The argument of this book, with its constant references to America’s divergent tectonic plates, might be thought to point to the likelihood of there occurring in the United States at some time in the not too distant future a major and potentially destructive political earthquake, if not on the scale of

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America’s nineteenth-century Civil War, then possibly in the form of mass public protests leading to radical amendments to either the federal Constitution or the constitutions of many of the several states. Merely to mention that possibility, however, is to draw attention to the fact that no such earthquake is likely to occur. The plates will, in some form, continue to creak, grind and groan. They will almost certainly never slide past one another with San Andreas–like violence. One reason why a major earthquake is most unlikely to take place in the U.S. is that the overwhelming majority of Americans, while they may well object to this, that or the other feature of their country’s political system, are nevertheless reasonably content with the system as a whole. Many, of course, are positively proud of it. Most Americans are almost certainly unaware of the paradoxes discussed in this book and, even if they were aware of them, would probably not be too bothered by a majority of them. Unlike the debates over slavery that preceded the American Civil War, the sorts of matters discussed in this book are matters of concern almost exclusively to philosophers, political scientists, political commentators and constitutional lawyers. The day-to-day and year-toyear concerns of most Americans lie, perfectly naturally, elsewhere. But there is another reason for the non-occurrence of a political earthquake in the United States that is perhaps worth drawing attention to. Early in the last century, Arthur Balfour, someone who had once served as British prime minister, wrote that Great Britain’s whole political machinery presupposed “a people so fundamentally at one that they [could] safely afford to bicker.” 41 He exaggerated, of course, but he had a point. The British have never seen the need for a codified, written constitution because most of them accept unthinkingly the terms of their country’s informal, uncodified, largely unwritten constitution. More than that of most Americans, theirs is a world of norms, habits, conventions and common understandings. They resort to the law relatively seldom. Their courts have powers of judicial review, but they have no power to

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invalidate an act of Parliament as being unconstitutional or illegal. Constitutional change, which frequently does occur, is more often than not accepted quite readily and without undue fuss. America, in this respect as in so many others, is quite different. Anyone looking in upon the U.S. from outside is struck by the formality and rigidity of its constitutional arrangements. Would-be reformers of the Constitution are daunted by this same rigidity. Although amended, a constitution that was drafted and ratified in the late eighteenth century remains to a remarkable extent in place in the twenty-first. Features of it that seem undemocratic, even anti-democratic, and enjoy relatively little popular support, such as the electoral college, have proved remarkably resistant to change. The Constitution is revered, of course, and the men who framed it intended it to be hard to change. But another factor is almost certainly in play, helping to account for the remarkable endurance of so many elements of the 1787 structure: the American people, unlike the British, are not a people so fundamentally at one that they can safely afford to bicker—let alone so fundamentally at one that they feel that they can afford to tackle fundamental issues head-on. They did that once upon a time, and a bloody civil war followed. Americans are divided from one another by region, race, ethnic origin, religious affiliation, increasingly by language, to some extent by historical memory (over that civil war) and, perhaps most deeply of all, by profound differences in their whole philosophy of life. Some Americans, probably the great majority, are relaxed, tolerant, easygoing and not at all disposed to proselytizing; they are comfortable with diversity and have a generally live-and-let-live approach to life. Other Americans, smaller in number but more strident in tone, are true believers, confident that they alone have seen the light and accordingly determined to persuade others, if they can, of the errors (plural) of their ways; they are less comfortable with diversity, and they preach, usually alongside other religions, the religion of fundamentalist “Americanism.” One group takes it for granted that there will always be an America ( just as the

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English, in a jolly way, sing “There’ll always be an England”). The other group is fearful: fearful of America’s security, of its identity, of its homogeneity, even of its soul. The one group finds enemies only where it finds them. The other seems constantly to be on the lookout for them and to relish the fact whenever it convinces itself it has found them. For many fundamentalists, their enemies almost appear to define who they are. Feelings as passionate as these, and convictions so strongly held, inevitably arouse controversy and provoke bitterness, even hostility, between those who adhere to each of the two philosophies. Issues that in other countries, including America’s near neighbor to the north, are treated pragmatically, with hard edges deliberately softened, such as capital punishment, same-sex marriage, flag burning, gun control, abortion and global warming, are routinely treated in the United States as matters of high principle, matters that brook no compromise. Americans often say “Cool it!” They need to do so because a common, though by no means universal, American instinct is to heat contentious issues to boiling point. A great American historian wrote a book called The Paranoid Style in American Politics. A foreign correspondent based in the U.S. recently published The United States of Anger.42 The language of “culture wars” may be exaggerated. No such wars have actually broken out. But every American senses that one day they might. The fact that American society is so deeply divided, psychologically and ideologically as well as demographically, helps to explain the continuing coexistence within the American political system of ancient constitutional practices and doctrines alongside their more modern radical-democratic opposites. The delicate balance that exists at present between these two bodies of doctrine may not give everyone total satisfaction, but serious efforts to disturb the existing balance could, in themselves, prove disturbing, quite possibly dangerously so. The present arrangements, whatever their defects from either doctrine’s point of view, have the great advantage of identifying potentially threatening issues and of taking many of them out of politics, by the simple expedient of handing them over

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to allegedly apolitical courts, especially the Supreme Court. Everyone knows that the courts in general and the Supreme Court in particular are by no means apolitical, but widespread acceptance of this convenient fiction serves a dampening and calming purpose. Another, even deeper purpose is also served by most Americans’ continuing acceptance at the beginning of the twenty-first century of the major elements of a constitution first drafted in the late eighteenth century. Along with the national anthem, the flag, the pledge of allegiance and the belief that America is the greatest country in the world, the U.S. Constitution serves as one of America’s few effective unifiers. It brings together what might otherwise fall or fly apart. It is an object of worship because Americans badly need a solid core of institutions and objects which they all feel that they can worship together. As the man said of the U.S. Constitution, “It’s what holds us all together.”

Notes

2. Who—and What—Were “the People”? 1. James Madison, Notes of Debates in the Federal Convention of 1787, Bicentennial Edition (New York: W. W. Norton, 1987). Madison’s record of the convention is henceforth referred to simply as Notes. Madison’s spelling and punctuation have occasionally been modified slightly—but only very slightly—in order to make the meaning clearer. 2. Quoted in Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000), table A.1, p. 329, n. 4. 3. Notes, p. 406. 4. Notes, p. 187. 5. Notes, pp. 209–211. 6. Notes, p. 53. 7. Notes, pp. 136–137. 8. Notes, p. 584. James Wilson in a later debate made essentially the same point, insisting that further augmenting the powers of the Senate would have “a dangerous tendency to aristocracy” (p. 587). 9. Notes: Gerry, p. 349; Mason, p. 348; Madison, pp. 70, 349. 10. Michael Kazin, The Populist Persuasion: An American History, 2nd ed. (Ithaca, NY: Cornell University Press, 1998), p. 13.

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11. Quoted in Richard Hofstadter, The American Political Tradition and the Men Who Made It (New York: Vintage Books, 1973), p. 30. 12. Notes, p. 187. 13. Notes, p. 452. 14. Notes, p. 404. 15. Notes: Franklin, p. 53; Hamilton, p. 131; Gerry, p. 178; Madison, p. 178; Morris, p. 233; Mason, p. 260; Gorham, p. 315; Mason, p. 451; Sherman, p. 454. 16. Notes, p. 426. 17. Notes, p. 135. Hamilton’s caustic later remark can be found in Federalist 6. 18. Notes: Randolph, p. 168; Hamilton, p. 135; Gerry, p. 368; Madison, p. 272; Gorham, p. 315; Dickinson, p. 402; Madison, p. 193. 19. Gordon S. Wood, The Radicalism of the American Revolution (New York: Alfred A. Knopf, 1992), p. 131. 20. See Ian Gilmour, Riot, Risings and Revolution: Governance and Violence in Eighteenth- Century England (London: Hutchinson, 1992). 21. Quoted in Joseph J. Ellis, His Excellency: George Washington (New York: Alfred A. Knopf, 2004), p. 172. 22. That particular phrase was Edmund Randolph’s (Notes, p. 128). See also the remarks of Nathaniel Gorham and Daniel Carroll (p. 321). 23. Notes: Sherman, p. 75; Hamilton, p. 137; Randolph, p. 168; Mason, p. 177; Madison, p. 178; Morris, p. 233; Mason, p. 341; Madison, p. 364; John Mercer (Maryland), p. 451. 24. Notes, p. 200. 25. Notes, p. 245. 26. Notes: Madison, p. 113; Rutledge, p. 167; Ellsworth, p. 189; Pinckney, p. 450.

3. The People in the House of Power 1. James Madison, Notes of Debates in the Federal Convention of 1787, Bicentennial Edition (New York: W. W. Norton, 1987), pp. 38–39 (hereafter Notes). Franklin’s own state, Pennsylvania, was the only state in the union with a unicameral legislature. 2. Notes, p. 127. 3. Notes, p. 39. 4. Notes, p. 39. 5. Notes, p. 41. 6. Notes, pp. 39–40. 7. Notes, p. 40. 8. Notes, p. 608.

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9. Notes: Hamilton, p. 170; Ellsworth, p. 169; Randolph, p. 168. 10. Notes: Morris, p. 233; Randolph, p. 110; Hamilton, p. 135. 11. Notes, pp. 93– 94. Edmund Randolph had spoken in similar terms in an earlier debate, denouncing “the turbulence and follies of democracy” and maintaining that the second branch of the government should be much smaller than the first, “so small as to exempt it from the passionate proceedings to which numerous assemblies are liable.” See Notes, p. 42, and also the detailed discussion in Daniel Wirls and Stephen Wirls, The Invention of the United States Senate (Baltimore, MD: Johns Hopkins University Press, 2004), pp. 79– 82. 12. Notes, p. 82. 13. Notes: Hamilton, p. 135; Morris, p. 233. 14. Notes, p. 198. 15. Notes, p. 597. 16. Notes, p. 598. 17. Only about one-third of the world’s parliaments have second branches at all. Of those that do, few have second chambers that rival the power and influence of the U.S. Senate. For a series of studies of the role of senates and second chambers in other liberal democracies, see Samuel C. Patterson and Anthony Mughan, eds., Senates: Bicameralism in the Contemporary World (Columbus: Ohio State University Press, 1999). The countries covered by the volume comprise, in addition to the U.S., Germany, Australia, Canada, France, the United Kingdom, Italy, Spain and Poland. 18. Notes, p. 16. 19. Interestingly, Madison favored presidential electors over a popular vote because the institution of electors would strengthen the position of the Southern states vis-à-vis the Northern states, given that “Negroes” (as he called them) could not vote but would count toward the South’s representation in the electoral college. See Notes, pp. 327, 365. 20. Notes, p. 306. 21. Notes: Sherman, p. 306; Pinckney, p. 307; Mason, pp. 308–309; Gerry, p. 327. 22. Notes, p. 73. 23. Notes, p. 459. 24. Notes, p. 364. 25. Notes, p. 50. 26. Notes, p. 574. The formulation finally agreed upon was “as the Legislature thereof may direct.”

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27. The despairing duo were John Rutledge and Oliver Ellsworth; see Notes, p. 465. 28. Notes, p. 329. 29. Notes, p. 329. 30. Notes, p. 310. According to an asterisked footnote on the same page of the Notes, “The probable object of [McClurg’s] motion was merely to enforce the argument against the re-eligibility of the Executive Magistrate, by holding out a tenure during good behaviour as the alternative for keeping him independent of the Legislature.” 31. Notes, p. 358. 32. Notes: Sherman, p. 49; Morris, p. 310; Wilson, p. 359. 33. Notes, p. 58. 34. See the detailed record of the votes in Notes, p. 590. The reader is also left with the impression that Madison himself may by this time have been exhausted by his prodigious note-taking efforts. 35. Notes: Sherman, p. 63; Madison, p. 629. 36. Notes, p. 63. The speaker was Gouverneur Morris. 37. Notes, p. 63. The speakers were Pierce Butler (South Carolina) and James Wilson. 38. Notes, p. 629. 39. Notes, p. 13. 40. Notes, p. 475. 41. Notes, p. 67. 42. Notes: Wilson, p. 67; Madison, p. 68. 43. Notes, p. 67. On the New Jersey Plan, see p. 120. 44. Notes, p. 317. 45. Notes, p. 317. 46. Notes: Madison, p. 353; Mercer, p. 462. 47. Notes: Mason, p. 159; Bedford, p. 242. 48. Notes, p. 551. The speaker was John Rutledge of South Carolina. 49. Notes, p. 128. 50. Notes, p. 236. 51. Notes, p. 224. In a later debate, reported on p. 295, Madison added: “It seemed now to be pretty well understood that the real difference of interests lay, not between the large & small but between the N. and Southern States. The institution of slavery & its consequences formed the line of discrimination.” 52. That was Hamilton’s view (and, by implication, that of the other Federalist authors). But it was not theirs alone. On the day after the 1787 con-

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53.

54. 55. 56. 57. 58.

vention adjourned, George Washington dispatched a copy of the new Constitution to the Marquis de Lafayette in France with a covering note saying, “It is now a Child of fortune, to be fostered by some and buffeted by others. What will be the General opinion on, or the reception of it, is not for me to decide, nor shall I say any thing for or against it: if it be good I suppose it will work its way good; if bad, it will recoil on the Framers.” Quoted in Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1986), p. 43. Notes, pp. 658– 659. As late as 1821, Madison was writing to a friend to say that the publication of his notes of the convention’s proceedings “should be delayed till the Constitution should be well settled by practice and till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account.” Quoted in Kammen, Machine That Would Go of Itself, p. 26. The Madisonian era was not one that valued “transparency” above all else. Quoted in Kammen, Machine That Would Go of Itself: Rush, p. 45; Washington, p. 71. Quoted in Kammen, Machine That Would Go of Itself, p. 169. Quoted in Kammen, Machine That Would Go of Itself, p. xviii. “Bicentennial Observance of the U.S. Constitution,” in Historic Documents of 1987 (Washington, DC: CQ Press, 1988), pp. 768– 771. Senator Lowell P. Weicker of Connecticut, speaking in 1981, quoted in Kammen, Machine That Would Go of Itself, p. 398.

4. The Exaltation of the People 1. James Madison, Notes of the Debates in the Federal Convention of 1787, Bicentennial Edition (New York: W. W. Norton, 1987), pp. 64, 135, 110 and 234 (hereafter Notes). 2. Madison in Federalist 10 was at pains to distinguish “pure democracy” of the Athenian type from “republican government,” by which he meant a republic’s far greater geographical extent and “the delegation of the government, in the latter, to a small number of citizens elected by the rest.” Madison did not say in so many words what he thought an impure democracy would look like, but throughout Federalist 10 he emphasizes the desirability of securing the election of a sufficiently large number of “fit characters.” 3. Quoted in James A. Henretta, The Evolution of American Society, 1700–1815 (Lexington, MA: D. C. Heath, 1973), p. 188.

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4. Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer and Max Lerner, trans. George Lawrence (New York: Harper & Row, 1966), pp. 9, 54 and 56. English translation copyright © 1965 by Harper & Row Publishers, Inc. Reprinted by permission of HarperCollins Publishers. 5. Quoted in Henretta, Evolution of American Society, p. 9. 6. Gordon S. Wood, The Radicalism of the American Revolution (New York: Alfred A. Knopf, 1992), p. 232. 7. Quoted in Henretta, Evolution of American Society, p. 99. 8. Wood, Radicalism of the American Revolution, p. 266. The unfortunate former delegate was James Wilson of Pennsylvania. 9. Lawrence E. Cremin, American Education: The Colonial Experience, 1607– 1783 (New York: Harper & Row, 1970), p. 546. Cremin refers (p. 544) to “the prevalence of schooling and its accessibility to most segments of the population” by the time of the Revolution. 10. Richard D. Brown, The Strength of a People: The Idea of an Informed Citizenry in America, 1650–1870 (Chapel Hill: University of North Carolina Press, 1996), p. 65. 11. Daniel J. Boorstin, The Americans: The Colonial Experience (New York: Alfred A. Knopf, 1958), p. 327. 12. Wood, Radicalism of the American Revolution, p. 313. 13. Tocqueville, Democracy in America, p. 189. 14. Theda Skocpol, “How Americans Became Civic,” in Theda Skocpol and Morris P. Fiorina, eds., Civic Engagement in American Democracy (Washington, DC: Brookings Institution, 1999), p. 66. 15. Nathan O. Hatch, The Democratization of American Christianity (New Haven, CT: Yale University Press, 1989), p. 10. 16. John M. Blum et al., The National Experience: A History of the United States, 8th ed. (Fort Worth, TX: Harcourt Brace Jovanovich, 1993), pp. 40–42. 17. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000), p. 7. 18. Precise figures are not available and estimates vary, but probably no more than 10 percent of adult male Britons were entitled to vote at that time. 19. The one notable exception to this general rule is a much smaller but by no means negligible country, namely, Switzerland, with its cantons (many of them tiny), its highly decentralized system of government and its innumerable referendums. Political scientists generally ignore Switzerland, as do most Eu ropeans (except for purposes of photogra-

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20. 21. 22. 23. 24. 25.

26. 27. 28. 29.

30. 31. 32.

33. 34. 35.

phy, skiing and mountain climbing). But it is a country worth studying. See Wolf Linder, Swiss Democracy: Possible Solutions to Conflict in Multicultural Societies, 2nd ed. (New York: St. Martin’s Press, 1998); Jurg Steiner, Amicable Agreement versus Majority Rule (Chapel Hill: University of North Carolina Press, 1974); and, for a more general introduction to Swiss culture and society as well as its politics, Jonathan Steinberg, Why Switzerland? 2nd ed. (Cambridge: Cambridge University Press, 1996). Quoted in W. B. Allen and Gordon Lloyd, eds., The Essential Antifederalist, 2nd ed. (Lanham, MD: Rowman & Littlefield, 2002), p. 16. Quoted in Allen and Lloyd, eds., Essential Antifederalist, p. 20. Quoted in Allen and Lloyd, eds., Essential Antifederalist, p. 155. Quoted in Allen and Lloyd, eds., Essential Antifederalist, p. 256. Quoted in Allen and Lloyd, eds., Essential Antifederalist, p. 104. See Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era, 2nd ed., trans. Rita and Robert Kimber (Lanham, MD: Rowman & Littlefield, 2001), esp. pp. 23–24, 142–145 and 252. A radical democrat named Joel Barlow, quoted in Wood, Radicalism of the American Revolution, p. 343. Quoted in Wood, Radicalism of the American Revolution, pp. 231–232. Retired senator Nathan Sanford of New York in 1821, quoted in Keyssar, Right to Vote, p. 43. Benjamin Latrobe, sometimes described as “the father of American architecture,” quoted in Wood, Radicalism of the American Revolution, p. 295. Tocqueville, Democracy in America, p. 435. Quoted frequently, including in Antony Jay, ed., The Oxford Dictionary of Political Quotations (Oxford: Oxford University Press, 1996), p. 93. The concept of “creedal passion” was introduced by Samuel P. Huntington in American Politics: The Promise of Disharmony (Cambridge, MA: Harvard University Press, 1981). See esp. chapter 5. The phrase is used here in a similar, though not identical, sense. Quoted in Marvin Meyers, The Jacksonian Persuasion: Politics and Belief (Stanford, CA: Stanford University Press, 1957), p. 14. Quoted in Meyers, Jacksonian Persuasion, pp. 13–14. James A. Morone, The Democratic Wish: Popular Participation and the Limits of American Government, revised ed. (New Haven, CT: Yale University Press, 1998), p. 86.

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36. Quoted in Richard Hofstadter, The American Political Tradition and the Men Who Made It (New York: Vintage Books, 1973), p. 247. 37. Inaugural Addresses of Presidents of the United States: Grover Cleveland (1885) to George W. Bush (2005) (Bedford, MA: Applewood Books, 2006), p. 33. 38. Theodore Roosevelt, Social Justice and Popular Rule: Essays, Addresses, and Public Statements Relating to the Progressive Movement (1910–1916) (New York: Charles Scribner’s Sons, 1926). 39. Quoted in Hofstadter, American Political Tradition, p. 328. 40. Quoted in Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York: Vintage Books, 1955), p. 262. 41. Michael Kazin, The Populist Persuasion: An American History, 2nd ed. (Ithaca, NY: Cornell University Press, 1998), p. 2. 42. Quoted in Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: W. W. Norton, 1988), pp. 209–210. King Ina was king of the West Saxons for several decades at the turn of the eighth century, and he does appear to have held “witans” or royal councils from time to time. But it is less clear whether he invited all free men to attend, and, even if he did, those who attended would have come from the territories he ruled, not from the whole of what is now England. 43. Notes, p. 259. 44. Quoted in Morgan, Inventing the People, pp. 210–211. 45. Morgan, Inventing the People, p. 212. 46. Adams, First American Constitutions, pp. 246–247. 47. Tocqueville, Democracy in America, p. 247. 48. Edmund Burke, Selected Writings and Speeches, ed. Peter J. Stanlis (New York: Anchor Books, 1963), p. 187. 49. The distinction between the elected representative as “trustee” and the elected representative as “delegate” is developed in John C. Wahlke et al., The Legislative System: Explorations in Legislative Behavior (New York: John Wiley, 1962), esp. chapter 12. The more Burkean approach of most British members of Parliament, in the present as well as the past, is touched on in Anthony King, The British Constitution (Oxford: Oxford University Press, 2007), pp. 55–56. 50. Morgan, Inventing the People, pp. 229 and 245. 51. Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (Baton Rouge: Louisiana State University Press, 1980), pp. 112–113.

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52. See above, p. 43. 53. Adams, First American Constitutions, p. 242. 54. In 1911, at the same time as the British House of Lords was deprived of its absolute veto power over legislation that had been passed by the House of Commons, it was agreed that a parliamentary election should be held at least once every five years. Five years remains the maximum, although since 1911 elections in the United Kingdom have often been held at much shorter intervals. 55. See Adams, First American Constitutions, pp. 328–331. 56. Wood, Radicalism of the American Revolution, p. 259. 57. Federal Farmer, quoted in Allen and Lloyd, eds., Essential Antifederalist, p. 149. See also pp. 254–257. 58. Quoted in Hofstadter, American Political Tradition, p. 66. 59. Quoted in Hofstadter, American Political Tradition, p. 66. 60. Tocqueville, Democracy in America, p. 269. 61. Quoted in Thomas Goebel, A Government by the People: Direct Democracy in America, 1890–1940 (Chapel Hill: University of North Carolina Press, 2002), p. 34. 62. Goebel, Government by the People, p. 26. Senator Albert J. Beveridge spoke in similar terms at the 1912 Progressive Party convention: “The rule of the people means that when the people’s legislators make a law which hurts the people, the people themselves may reject it. The rule of the people means that when the people’s legislators refuse to pass a law which the people need, the people themselves may pass it.” Quoted in Claude G. Bowers, Beveridge and the Progressive Era (Cambridge, MA: Houghton Miffl in, 1932), p. 427. 63. Quoted in Bowers, Beveridge and the Progressive Era, p. 243. 64. Tocqueville, Democracy in America, pp. 64, 246, 669 and 248. 65. Quoted in Wood, Radicalism of the American Revolution, p. 366. 66. Quoted in Wood, Radicalism of the American Revolution, p. 261. 67. Quoted in Wood, Radicalism of the American Revolution, p. 230. 68. Quoted in Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: W. W. Norton, 2005), p. 312. 69. Quoted in Goebel, Government by the People, p. 57. 70. Quoted in George E. Mowry, The Era of Theodore Roosevelt, 1900–1912 (New York: Harper & Row, 1958), pp. 41–42. 71. Quoted in Mowry, Era of Theodore Roosevelt, p. 42. 72. Arthur M. Schlesinger Jr., The Age of Jackson (Boston: Little, Brown, 1945), p. 268.

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5. The People Move Upstairs 1. James Madison, Notes of Debates in the Federal Convention of 1787, Bicentennial Edition (New York: W. W. Norton, 1987), p. 402 (hereafter Notes). 2. Notes, p. 405. 3. Quoted in Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (New York: Basic Books, 2000), p. 43. The account of franchise extension in the U.S. that follows is largely based on Keyssar. 4. Quoted in Keyssar, Right to Vote, p. 43. 5. Quoted in Keyssar, Right to Vote, p. 43. 6. Quoted in Keyssar, Right to Vote, p. 43. 7. The only other major power to experiment with universal manhood suffrage around the middle of the nineteenth century was France. Universal manhood suffrage was instituted in France in 1848, abolished in 1850 and reinstituted, by Louis Napoleon, in 1852. Initially, however, France’s elected National Assembly, compared with the U.S. Congress, was a virtually powerless body. 8. Quoted in Keyssar, Right to Vote, p. 53. 9. See Keyssar, Right to Vote, pp. 54–55. Keyssar attributes the widespread disenfranchisement of free black males to the widespread assumption among whites that black people were innately inferior and lacked any capacity for republican virtue and also to “an efflorescence of racism” in the United States from the 1820s onward (pp. 55–56). 10. See Keyssar, Right to Vote, p. 114. 11. For the details, see Keyssar, Right to Vote, table A.20, p. 319. 12. Keyssar, Right to Vote, p. 53. 13. In Great Britain, although the franchise was extended to larger and larger numbers of men during the nineteenth century, universal manhood suffrage did not arrive until 1918, and women were not granted the right to vote on the same basis as men until 1928. In France, men were given the right to vote in 1852 (although democratic voting of any kind was, of course, suspended during most of World War II), and women won the right to vote only at the time of the liberation of France in 1944. In Germany, all adults of both sexes voted on the same basis under the Weimar Republic (1919–1933) and again under the Federal Republic from 1949 onward. In Italy, adult males were entitled to vote in democratic elections, when such were held, from 1918 onward, but women were not accorded the right to vote until 1945. In Switzerland, women won the right to vote in federal elections only in 1971.

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14. Quoted in Keyssar, Right to Vote, p. 127. 15. See the language used by George Mason of Virginia in Notes, pp. 308 and 370. 16. Letter from Thomas Jefferson to Edmund Pendleton, August 26, 1776, in Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution, vol. 1: Major Themes (Chicago: University of Chicago Press, 1987), p. 56. Alexander Hamilton voiced similar sentiments in Federalist 68. 17. Quoted in Lucius Wilmerding Jr., The Electoral College (Boston: Beacon Press, 1958), p. 52. 18. Federalist 64. 19. William H. Riker, “The Senate and American Federalism,” American Political Science Review 49 (1955): 452–469, p. 463. 20. Quoted in Riker, “Senate and American Federalism,” p. 464. 21. Quoted in Riker, “Senate and American Federalism,” p. 464. As Riker points out, the Evening Post’s assertion was historically inaccurate. The contest between Lincoln and Douglas merely drew national attention to a practice that had already begun to emerge. 22. Riker, “Senate and American Federalism,” p. 468. See also C. H. Hoebeke, The Road to Mass Democracy: Original Intent and the Seventeenth Amendment (New Brunswick, NJ: Transaction, 1995). Hoebeke makes the same point (p. 109): “As a consequence of state democracy, the federal Senate was already an all-but-popular assembly by the time the public campaign was formally undertaken to wrest it from the legislative ‘machines.’ ” 23. Quoted in Alan P. Grimes, Democracy and the Amendments to the Constitution (Lexington, MA: Lexington Books, 1978), p. 75. 24. Quoted in Grimes, Democracy and the Amendments to the Constitution, p. 78. 25. Quoted in Grimes, Democracy and the Amendments to the Constitution, p. 79. 26. Quoted in Hoebeke, Road to Mass Democracy, p. 166. 27. Quoted in Hoebeke, Road to Mass Democracy, p. 169. 28. Quoted in Hoebeke, Road to Mass Democracy, p. 173. 29. Quoted in Hoebeke, Road to Mass Democracy, p. 184. 30. All adults—women as well as men and black people as well as white people—having already won the legal right to vote, the franchise was further extended in 1971 with the ratification of the twenty-sixth amendment to the Constitution, which provided that “The right of citizens of the United States, who are eighteen years of age or older, to

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31. 32. 33.

34.

35.

36. 37. 38.

39. 40. 41. 42. 43.

44.

vote shall not be denied or abridged by the United States or any State on account of age.” For a detailed account of how that particular amendment came to be passed, see David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996), pp. 363–369. For Beveridge’s statement of his views, see above, p. 95. Charles Edward Merriam and Louise Overacker, Primary Elections (Chicago: University of Chicago Press, 1928), p. 27. George W. Norris, “Why I Believe in the Direct Primary,” Annals of the American Academy of Political and Social Science 106 (March 1923): 22–30, p. 22. The thesis that direct primaries were often instituted by state party leaders—that is, from above—rather than as a simple response to popular pressure—that is, from below—is argued in Alan Ware, The American Direct Primary: Party Institutionalization and Transformation in the North (Cambridge: Cambridge University Press, 2002). Quoted in Kermit L. Hall, “The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary, 1846–1860,” The Historian 45 (1983): 337–354, pp. 340–341. James S. Fishkin, The Voice of the People: Public Opinion and Democracy (New Haven, CT: Yale University Press, 1995), pp. 8– 9. Notes, p. 537. For accounts of the rise of judicial elections in many states, see Hall, “Judiciary on Trial,” and Caleb Nelson, “A Re-Evaluation of Scholarly Explanations for the Rise of the Elective Judiciary in Antebellum America,” American Journal of Legal History 37 (1993): 190–224. Quoted in Nelson, “Re-Evaluation,” p. 218. Quoted in Nelson, “Re-Evaluation,” p. 214. Quoted in Nelson, “Re-Evaluation,” p. 218. Quoted in Hall, “Judiciary on Trial,” p. 347. The states that provide for the election of judges vary widely according to which judicial benches are filled by election, in the precise method of election, in the initial terms of office of elected judges, in the means by which they are allowed to remain in office (if they are) and in the length of their subsequent terms of office (if they have any). Although it is probably now somewhat out of date, see Larry C. Berkson, “Judicial Selection in the United States: A Special Report,” Judicature 64 (1980): 176–193. The framers of the Constitution never considered the possibility that the voters in a district or state might be enabled to recall their elected

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45.

46.

47.

48. 49. 50.

representatives, but of course they were well aware that under the unsatisfactory Articles of Confederation, which they themselves had assembled to replace, state legislatures had been given the power to recall, at any time, their delegates (note the word) to the U.S. Congress. The fact that the state legislatures had that power was presumably one of the reasons why the framers had no truck with the concept of the recall. The fifth of the Articles of Confederation provided that the legislatures of the several states were to appoint delegates to the U.S. Congress annually “with a power reserved to each State, to recall its delegates, or any of them, at any time within the year, and to send others in their stead, for the remainder of the Year.” The full Articles of Confederation are reprinted in Bruce Frohnen, ed., The American Republic: Primary Sources (Indianapolis, IN: Liberty Fund, 2002), pp. 200–204. Quoted in Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, MA: Harvard University Press, 1989), p. 130. On the reason why “referendums” is preferable to “referenda” as the relevant plural noun, see David Butler and Austin Ranney, eds., Referendums around the World: The Growing Use of Direct Democracy (Washington, DC: AEI Press, 1994), p. 1, n. 1: “We speak of referendums, not referenda, on the advice of the editors of the Oxford English Dictionary: ‘Referendum is logically preferable as a plural form meaning ballots on one issue (as a Latin gerund referendum has no plural). The Latin plural gerundive referenda, meaning “things to be referred,” necessarily connotes a plurality of issues.’ ” On this reading, the word “referenda” in this context looks Latinate and learned, but in reality is neither. Quoted in Thomas Goebel, A Government by the People: Direct Democracy in America, 1890–1940 (Chapel Hill: University of North Carolina Press, 2002), p. 36. Goebel, Government by the People, p. 135. Quoted in Goebel, Government by the People, p. 186. See above, p. 82.

6. Two Tectonic Plates, Two Nostalgias 1. Of course, not all Americans revere all of the same actors and episodes. Many southerners still wish the South had won the Civil War and revere the memory of Jefferson Davis. Most northerners are glad the North won and, if they ever think about Davis, still regard him as a rebel and traitor. Fortunately, southerners and northerners can worship together

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2. 3. 4.

5. 6. 7. 8. 9.

10. 11. 12. 13. 14. 15. 16. 17.

at the shrines of America’s founding fathers. Fortunately, too, majorities on both sides can agree that Robert E. Lee was a wholly honorable man as well as a great military commander. Richard Hofstadter, The Age of Reform: From Bryant to F.D.R. (New York: Vintage Books, 1955), p. 24. Jefferson, quoted in Richard Hofstadter, The American Political Tradition and the Men Who Made It (New York: Vintage Books, 1973), p. 36. Baron de Montesquieu, The Spirit of the Laws, trans. Thomas Nugent (New York: Hafner, 1949), p. 161. See p. 151 for an indication of Montesquieu’s admiration for the British (or, as he called it, the English) system. John Locke, Two Treatises of Government, 2nd ed., ed. Peter Laslett (Cambridge: Cambridge University Press, 1967), p. 350. “A Letter Concerning Toleration,” in The Selected Political Writings of John Locke, ed. Paul E. Sigmund (New York: W. W. Norton, 2005), p. 129. Locke, Two Treatises of Government, pp. 412–413. John Stuart Mill, On Liberty and Other Essays, ed. John Gray (Oxford: Oxford University Press, 1991), p. 122. The quotations in the text are drawn from Locke’s constitutions for Carolina, reprinted in John Locke, Political Writings, ed. David Wootton (London: Penguin Books, 1993), pp. 225–226 and 232. Far from remaining the sacred form and rule of government for Carolina forever, Locke’s constitutions never came into force in the first place. Those who write about them invariably discuss the part played by the drafting of the Carolina constitutions in Locke’s philosophical development, but they pay little or no attention to what became of the constitutions themselves. Quoted in Leonard W. Levy, Origins of the Bill of Rights (New Haven, CT: Yale University Press, 1999), p. 10. Montesquieu, Spirit of the Laws, pp. 151–152. Edmund Burke, Selected Writings and Speeches, ed. Peter J. Stanlis (New York: Anchor Books, 1963), p. 187. See above, pp. 44, 45 and 53. Montesquieu, Spirit of the Laws, p. 155. Montesquieu, Spirit of the Laws, p. 150. Montesquieu, Spirit of the Laws, p. 155. Predictably, Alexander Hamilton was the most outspoken delegate in his praise of the British system of government in general, which he described as “the best in the world,” and the House of Lords in particular, which he described as “a most noble institution” on account of its forming “a permanent barrier against every pernicious innovation,

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18. 19. 20. 21. 22. 23.

24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

whether attempted on the part of the Crown or of the Commons.” See James Madison, Notes of Debates in the Federal Convention of 1787, Bicentennial Edition (New York: W. W. Norton, 1987), pp. 134–135. Of course, no one, not even Hamilton, thought that the proposed U.S. Senate should be composed of British-style hereditary peers. Montesquieu, Spirit of the Laws, pp. 154, 155. Mill, On Liberty and Other Essays, p. 291. John F. Kennedy, Profiles in Courage (New York: Harper, 1956), p. 13. Kennedy, Profiles in Courage, pp. 16–17. Jean-Jacques Rousseau, The Social Contract, trans. Maurice Cranston (London: Penguin Books, 1968), p. 141. “Declaration of the Rights of Man and of Citizens,” quoted in Thomas Paine, Rights of Man, Common Sense and Other Political Writings, ed. Mark Philp (Oxford: Oxford University Press, 1995), p. 162. Paine, Rights of Man, p. 206. Paine, Rights of Man, p. 236. Paine, Rights of Man, p. 380. Rousseau, Social Contract, p. 141. Paine, Rights of Man, p. 7. Paine, Rights of Man, p. 233. Frank M. Bryan, Real Democracy: The New England Town Meeting and How It Works (Chicago: University of Chicago Press, 2004), pp. x, xii. Lawrence K. Grossman, The Electronic Republic: Reshaping Democracy in the Information Age (New York: Viking, 1995), p. 49. Pippa Norris, Digital Divide: Civic Engagement, Information Poverty, and the Internet Worldwide (New York: Cambridge University Press, 2001), p. 98. http://www.thecontract.org/the-contract-from-america . http://www.JoinTheTeaParty.us/intro.html.

7. An Assortment of Solutions 1. See, for example, the findings reported in Rasmussen Reports, July 1, 2010, http://www.rasmussenreports .com/public _content/politics/general _politics/june _2010 . 2. Pure democracy is the cause championed by, in particular, Benjamin R. Barber in Strong Democracy: Participatory Democracy for a New Age (Berkeley: University of California Press, 1984). 3. Quotations drawn from Sarah P. Herlihy, “Amending the Natural Born Citizen Requirement: Globalization as the Impetus and the Obstacle,” Chicago-Kent Law Review 81 (2005): 275–300, p. 275.

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4. Herlihy, “Amending the Natural Born Citizen Requirement,” p. 276. 5. Quoted in Herlihy, “Amending the Natural Born Citizen Requirement,” p. 288, n. 54. 6. Quoted in Thomas Goebel, A Government by the People: Direct Democracy in America, 1890–1940 (Chapel Hill: University of North Carolina Press, 2002), p. 127. 7. Quoted in Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, MA: Harvard University Press, 1989), p. 171. 8. The governor of Oregon quoted in Cronin, Direct Democracy, p. 172. 9. Kemp and Laffer both quoted in Cronin, Direct Democracy, p. 173. 10. Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer and Max Lerner, trans. George Lawrence (New York: Harper & Row, 1966), p. 270. 11. Opponents of the electoral college have campaigned for some time for a “national popular vote compact,” which would have states with a majority of the nationwide electoral-college vote agreeing to cast all of their own state’s electoral votes for whichever candidate won a plurality of the nationwide popular vote. The legislatures of a few states have voted to join the compact, but not nearly enough to secure the requisite majority. The aims of the exercise are, of course, to ensure that the popular-vote winner is also the actual winner but also to circumvent the need for the introduction and ratification of a formal constitutional amendment to achieve the same effect. 12. See above, p. 54. 13. David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996), p. 331. Kyvig notes on the same page that “One of only two northern urban liberal Democratic members to vote for [the twenty-second amendment] was freshman representative John Kennedy of Massachusetts, whose father had become a bitter foe of Franklin Roosevelt.” 14. Senator Karl Mundt of South Dakota, quoted in Kyvig, Explicit and Authentic Acts, p. 327. 15. Quoted in Kyvig, Explicit and Authentic Acts, p. 328. 16. Quoted in Alan P. Grimes, Democracy and the Amendments to the Constitution (Lexington, MA: Lexington Books, 1978), p. 116. 17. Quoted in Paul G. Willis and George L. Willis, “The Politics of the Twenty-Second Amendment,” Western Political Quarterly 5 (1952): 469– 482, pp. 476–477. 18. Eisenhower quoted in Kyvig, Explicit and Authentic Acts, p. 334.

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19. Reagan quoted on both occasions in Kyvig, Explicit and Authentic Acts, p. 335. 20. Quoted in Kyvig, Explicit and Authentic Acts, p. 334.

8. Democracy in America 1. Federalist 10. 2. Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall (Cambridge, MA: Harvard University Press, 1989), pp. 249–250. 3. Michael X. Delli Carpini and Scott Keeter, What Americans Know about Politics and Why It Matters (New Haven, CT: Yale University Press, 1996), p. 270. 4. See, for example, Delli Carpini and Keeter, What Americans Know about Politics, table 2.2, pp. 70– 71. 5. Robert A. Dahl, How Democratic Is the American Constitution? (New Haven, CT: Yale University Press, 2002), p. 39. 6. Dahl, How Democratic Is the American Constitution?; Alan Wolfe, Does American Democracy Still Work? (New Haven, CT: Yale University Press, 2006); Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (New York: Oxford University Press, 2006); Daniel Lazare, The Frozen Republic: How the Constitution Is Paralyzing Democracy (New York: Harcourt Brace, 1996); Cronin, Direct Democracy; Frank M. Bryan, Real Democracy: The New England Town Meeting and How It Works (Chicago: University of Chicago Press, 2004); Benjamin R. Barber, Strong Democracy: Participatory Democracy for a New Age (Berkeley: University of California Press, 1984); John R. Hibbing and Elizabeth Theiss-Morse, Stealth Democracy: Americans’ Beliefs about How Government Should Work (Cambridge: Cambridge University Press, 2002); Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge, MA: Belknap Press of Harvard University Press, 1996); Stephen Macedo, Democracy at Risk: How Political Choices Undermine Citizen Participation, and What We Can Do about It (Washington, DC: Brookings Institution, 2005). 7. Dahl, How Democratic Is the American Constitution?, p. 122. 8. Dahl, How Democratic Is the American Constitution?, p. 49. 9. Dahl, How Democratic Is the American Constitution?, p. 55. 10. Dahl, How Democratic Is the American Constitution?, p. 146. 11. The phrase “sacred aura,” quoted with acknowledgement by Dahl, is taken from Michael Schudson, The Good Citizen: A History of American

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12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25.

26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38.

Civic Life (Cambridge, MA: Harvard University Press, 1998), p. 202. Schudson in the same passage notes that between the two world wars worship of the Constitution “acquired the trappings of a religious cult.” Levinson, Our Undemocratic Constitution, p. 60. Levinson, Our Undemocratic Constitution, p. 152. Levinson, Our Undemocratic Constitution, p. 165. Barber, Strong Democracy, p. 296. Barber, Strong Democracy, pp. 145–146. Barber, Strong Democracy, pp. 269, 273, 278, 280, 284, 299. Lawrence K. Grossman, The Electronic Republic: Reshaping Democracy in the Information Age (New York: Viking, 1995), pp. 239, 249. Lazare, Frozen Republic, p. 293. George F. Will, Restoration: Congress, Term Limits and the Recovery of Deliberative Democracy (New York: Free Press, 1992), p. 4. Will, Restoration, p. 104. Will, Restoration, p. 108. Will, Restoration, p. 107. Will, Restoration, p. 109. Dewey is frequently quoted—for example, in Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: W. W. Norton, 2003), p. 240—as having said: “The cure for the ailments of democracy is more democracy.” Barber in Strong Democracy (p. xi) agrees: “We suffer, in the face of our era’s manifold crises, not from too much but from too little democracy.” Hibbing and Theiss-Morse, Stealth Democracy, p. 13. Hibbing and Theiss-Morse, Stealth Democracy, p. 216. Hibbing and Theiss-Morse, Stealth Democracy, pp. 83, 140. Hibbing and Theiss-Morse, Stealth Democracy, p. 118. Hibbing and Theiss-Morse, Stealth Democracy, p. 119. Hibbing and Theiss-Morse, Stealth Democracy, p. 1. Hibbing and Theiss-Morse, Stealth Democracy, p. 44. Hibbing and Theiss-Morse, Stealth Democracy, pp. 125–126, 130. Hibbing and Theiss-Morse, Stealth Democracy, pp. 161–162. Hibbing and Theiss-Morse, Stealth Democracy, p. 99. Charles O. Jones and Kathryn Dunn Tenpas, “Shaping the 44th Presidency,” Issues in Governance Studies no. 9 (August 2007): 1. See above, p. 44. Gregory J. Wawro and Eric Schickler, Filibuster: Obstruction and Lawmaking in the U.S. Senate (Princeton, NJ: Princeton University Press, 2006), p. 10.

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39. Senator Thomas Harkin of Iowa speaking in the Senate on February 11, 2010; see the Congressional Record for that date, p. S573. 40. Federalist 22. James Madison expressed similar sentiments on several occasions. 41. Quoted in Antony Jay, ed., Oxford Dictionary of Political Quotations (Oxford: Oxford University Press, 1996), p. 31. 42. Richard Hofstadter, The Paranoid Style in American Politics and Other Essays (New York: Alfred A. Knopf, 1965); and Gavin Esler, The United States of Anger (London: Michael Joseph, 1997).

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Index

abortion, 9, 164–165, 206 Adams, Willi Paul, 81 Adenauer, Konrad, 6 African-Americans. See black people Age of Jackson, The (Schlesinger), 97 Alaska, 182 Algeria, 8 “Americanism,” 205 American people: constitutional convention delegates’ dubiety about/ fear of, 29–34, 36, 38; constitutional convention delegates’ respect for, 27–29, 38 American society, 20–22, 26–27, 72– 77 anti-federalists, 62– 63, 78– 81, 91– 92 aristocracy, undesirability of, 24, 28, 32, 46, 62, 79– 80, 209 Aristotle, 186 Arizona, 7, 123 Articles of Confederation, 63, 91, 175, 220–221

“association,” 75 Athens, 70, 147–148, 150, 186 Austin, Texas, 118 Australia, 3, 6, 8, 9, 77 Balfour, Arthur, 204 Barber, Benjamin R., 185–186, 226 Bard, Thomas Robert, 97 Bedford, Gunning, 60 Beveridge, Albert J., 95, 114, 217 Bill of Rights, U.S., 80, 136, 178 bills of rights, 90, 136 black people: denial of franchise, 19, 103–104, 126, 170, 211, 218; extension of franchise, 86, 104, 219; referred to at constitutional convention, 17, 18, 20 Blair, Tony, 6 Boston, 87, 152 Brearly, David, 54 Bristol, U.K., 88, 138

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Britain, 3, 8, 9, 23, 36, 41, 62, 67, 74, 75, 76, 77, 82, 85, 88, 132–133, 142, 155, 197, 204–205, 217, 218 British institutions, respect for, 41, 44, 45, 85, 132–133, 140, 222–223 Broom, Jacob, 53 Brutus, 79 Bryan, Frank M., 148 Bryan, William Jennings, 84, 185 Buchanan, Patrick J., 160 Buckley v. Valeo, 195–196 Burke, Edmund, 88, 138, 141, 178, 216 Bush, George W., 5, 10, 199 Bush v. Gore, 165, 196 Butler, Nicholas Murray, 97 Butler, Pierce, 41 California, 7, 97, 118, 123, 124, 127, 166, 182 Canada, 3, 6, 8, 9, 77, 82, 155 capital punishment, 7, 165, 206 “chattering classes,” 178 checks and balances. See separation of powers Chicago, 116 Christian churches, 75– 76 Churchill, Winston, 83 Citizens United v. Federal Election Commission, 196 civil ser vice reforms, 117 civil society, 74– 75, 77 Civil War, 102–104, 108, 119, 204, 205, 221 Clinton, Bill, 5 Coelho, Tony, 174 Committee of Eleven, 47–48, 52, 54–55 Confederacy, 104, 126 Congressional Medal of Honor, 157–158 Constitution, U.S.: amending procedure, 60– 61, 182, 184, 202–203, 205; Article I, 100, 111; Article II, 4– 7, 23, 198; Article III, 14–15, 121; Article V, 184, 188; durability, 60, 63– 65, 155, 213; ratification, 25–26, 62– 63; reverence

for, 65– 67, 154–155, 156, 182, 204–205, 225–226; unifying effect, 67, 205–207 constitutional amendments, U.S.: first, 195–196; fifteenth, 104; seventeenth, 14, 111–113, 114, 200; nineteenth, 105; twenty-second, 5, 7, 169–173, 175–176, 183, 198–200, 224; twenty-sixth, 4, 7, 219–200 constitutional convention, secrecy of proceedings, 30, 65, 194, 213 constitutionalism, constitutional government, 39, 71, 131, 132–143, 188–189 Constitution Hall, 131 “Contract from America,” 152 Contract with America (Republican Party), 175 courts, powers, 9, 10, 60, 154–155, 162, 165, 182 “creedal passion,” 84 Cromwell, Oliver, 57 Cronin, Thomas E., 178 culture wars, 180, 206 “curing the mischiefs of faction,” 178 Dahl, Robert A., 180, 181–185, 197 Davie, William Richardson, 54 Davis, Gray, 124 Davis, Jefferson, 221–222 Declaration of Independence, 65, 136, 152 Declaration of the Rights of Man and of the Citizen, 144 Delaware, 7, 8, 13, 26, 42, 91, 102, 108, 111 deliberation, desirable, 44, 47–48, 138, 141, 148, 150, 151, 185, 188–189 deliberative polling, 151 democracy, conservative objections, 96– 97, 105–106, 112–114, 117 “democracy,” language of, 69– 71 Democracy in America (Tocqueville), 2, 72, 74– 75, 95– 96

i n d e x 2 39

Democratic Party, 10, 85, 110, 126, 170 Depew, Chauncey, 113 Dickinson, John, 33, 45, 51, 100, 139 Direct Legislation Leagues, 126 dog catcher, 117 Douglas, Stephen, 110, 219 e-democracy, 149–151, 186–187 Eisenhower, Dwight D., 5, 172–173 elections, U.S.: of 1789, 63; of 1800, 108; of 1828, 77, 108; of 1832, 108; of 1906, 95; of 1910, 111; of 1912, 159; of 1952, 172; of 1956, 172; of 1964, 160; of 2000, 10–11, 196; disorderly, 33; disputed, 9–11, 162–163, 196–197; for what purposes, 106; frequency, 43, 89, 122; offices fi lled by, 93, 106, 117–118 elective offices, large numbers, 117–118 electoral college, 11–13, 54, 107–109, 118, 168–169, 179, 205; debates surrounding, 165–167, 181–182, 183, 197, 224; invention, 51–52, 211 Electronic Republic, The (Grossman), 186 elites. See political elites Ellsworth, Oliver, 37, 42–43, 53, 89, 212 European Economic Community/ European Union, 8 Evening Post (New York), 110 factions, 35, 49, 79, 101, 119, 178, 188–189 Federal Farmer, 78 Federalist Papers, 32, 64– 65, 70, 96, 108–109, 152, 201 Federal Reserve Board, 191 Federation for Securing Majority Rule, 159 fi libusters, 200–202 France, 6, 8, 9, 11, 12, 36, 67, 72, 130, 155, 218 franchise: black people, 18–19, 86, 103–104, 218; extensions, 77, 86, 101–106, 218, 219–220; property

qualifications, 19, 86, 100–103; restrictions on, 18–19, 100–101; women, 18–19, 86, 104–105 Franklin, Benjamin, 23–24, 28, 30, 31–32, 33, 40 Frozen Republic, The (Lazare), 187 Fundamental Constitutions of Carolina, 135, 222 Gaulle, Charles de, 6 Germany, 8, 9, 67, 130, 155, 159, 218 Gerry, Elbridge, 25–26, 28, 30, 32, 40, 42, 49, 50, 51, 53, 54, 58, 63 Godkin, Edward L., 105–106 Goldwater, Barry, 160 Gore, Al, 10 Gorham, Nathaniel, 31, 32–33, 59 Grant, Ulysses S., 5 Great Britain. See Britain Grossman, Lawrence K., 186–187 gun ownership, 26, 36 Hamilton, Alexander, 24, 30, 32, 35, 41–42, 43, 44, 45–46, 47–48, 64– 65, 132, 136, 140, 201, 222–223 Hibbing, John R., 190–194 Hitler, Adolf, 171 Hogarth, William, 33 House of Commons, U.K., 3, 41, 62, 76, 217, 222–223 House of Lords, U.K., 44, 45, 140, 217, 222–223 House of Representatives, U.S.: elections, 40–42, 100–106; membership, 111, 113, 187; powers, 43; terms, 42–43 Ina, king of the West Saxons, 87, 216 initiative-referendums, 93– 94, 97, 124–128, 149, 158–160, 174, 184, 186, 189, 202 instructions to elected representatives, 87– 89

i n d e x 240

Jackson, Andrew, 5, 77, 82– 84, 92, 96– 97, 105, 110, 117, 120, 154, 180 Jacksonian democracy, 82– 84, 92, 117, 120, 180, 194 Jay, John, 96, 108–109 Jefferson, Thomas, 5, 28, 72, 107, 132, 178 “Joe Six-Pack,” 26 judges: appointment/elections, 13–15, 58–59, 93, 118–122, 165, 203; terms, 121–122. See also courts Kemp, Jack, 160 Kennedy, John F., 141–142, 224 Keyssar, Alexander, 105, 218 King, Rufus, 54, 65 Lafayette, Marquis de, 28, 213 Laffer, Arthur, 160 Lake Tahoe, California, 182 Latin America, 84 lawyers, 93, 120, 165, 204 Lazare, Daniel, 187 Lee, Robert E., 222 Levinson, Sanford, 183–185, 197 Lincoln, Abraham, 5, 84, 92, 110, 219 literacy rates, 74 Locke, John, 133–134, 135, 137, 139–140, 143, 222 Lodge, Henry Cabot, 113 Los Angeles, 123 Louisiana, 7, 12, 104 Madison, James, speeches/writings of, 5, 26, 30, 32–33, 35, 37, 41, 44, 49, 51, 56, 57–58, 59, 60, 64, 70– 71, 79, 80, 100, 132, 136, 139, 143, 162, 178, 211, 212, 213, 227 Marbury v. Madison, 60, 164 Martin, Luther, 53 Massachusetts, 13–14, 34, 40, 57, 58, 59, 62, 87, 90, 102, 103, 120–121, 122, 126, 141, 148

McClurg, James, 53, 212 McKinley, William, 85 Mecham, Evan, 123–124 Mercer, John, 35–36, 60, 101 Merriam, Charles Edward, 115 Mill, John Stuart, 134, 141 Mississippi, 119 monarchy, undesirability of, 23–24, 54–55, 62, 77– 78, 168 money in American politics, 194–196 Montesquieu, Baron de, 132–133, 137–138, 139–141 Morgan, Edmund S., 89 Morris, Gouverneur, 31, 35, 44, 46, 48, 49, 53, 54, 96 “Nader’s Raiders,” 160 National Federation for People’s Rule, 159 national popu lar vote compact, 224 Negroes. See black people Nevada, 7, 181–182 Nevsky, Alexander, 130 New Deal legislation, 164, 165, 169–170 New Jersey Plan, 59 New York: city, 21, 73; state, 62, 105, 108, 121 Norris, George W., 112 North Carolina, 55, 87, 102 Ohio, 13, 120–121 Oregon, 7, 110–111, 123, 160 Overacker, Louise, 115 Page, John, 87 Paine, Thomas, 74, 143, 144, 145, 146, 147–148 Paranoid Style in American Politics, The (Hofstadter), 206 Paterson, William, 87 Penn, William, 76, 86– 87

i n d e x 241

Pennsylvania, 15, 18–19, 39–40, 48, 50, 62, 76, 87– 88, 91, 103, 115–116, 210 Pharoah, 23–24 Philadelphia, 15, 21, 66, 72, 82, 131 Phillips, Kevin, 160 Pinckney, Charles, 21–22, 28, 37, 50 Pitt, William, 3 Planned Parenthood of Southeastern Pennsylvania v. Casey, 9, 164–165 Platt, Thomas C., 95 Plessy v. Ferguson, 164, 196 political class, undesirability of, 188, 190–193 political elites: desirability of, 37, 96– 97, 109, 138–139, 140, 141, 143, 188; distrust of/undesirability of, 79– 80, 82– 83, 85, 90– 92, 144–145 political parties, 12, 94– 95, 110, 114–117 Polk, James K., 110 Pomeroy, Eltweed, 125–126 presidency: elections, 49–52, 55, 78, 106–108, 165–167; eligibility, 3– 6, 157–158, 183–184, 197–198; office’s name, 49; powers, 47–48, 55–57, 58, 59– 60; reverence for, 155–156; terms, 52–55, 168–173, 198–200, 212 primary elections, 11–13, 94– 95, 114–117, 220 progressive era, 93– 95, 123, 124–125, 159, 186, 190 Progressive Party, 217 property, rights of, 36–37, 70, 119, 134 pure/strong democracy, 70, 149–150, 157, 180, 185–186, 213, 223. See also radical democracy Quay, Matthew, 95 radical democracy, 3, 131–132, 143–146, 149, 152–153, 189–194 Randolph, Edmund, 24, 32, 35, 43, 44, 54, 63, 119, 200, 211

Reagan, Ronald, 5, 66, 173 Real Democracy (F. M. Bryan), 148 rebellion/insurrection, 34, 57–58, 63– 64 recall of officials/representatives, 89– 90, 122–124, 162, 220–221 referendums: frequency, 126–127; introduction, 114–126; nationwide, 8, 127, 158–162, 184, 202–203; in the states, 7– 8. See also initiativereferendums religious belief, 19, 20, 23, 66, 75– 76, 83, 135, 205 representative institutions, 76– 77, 86– 87, 91– 92, 140–141; desirability/ necessity of, 140–141, 147, 213; undesirability of, 86– 87, 146–147, 148–149, 185 representatives’ roles, 88– 89, 138, 141–142, 216 “Republican Form of Government,” 99 republican government. See constitutionalism Republican Party, 10, 95, 110, 112, 160, 170, 172–173, 175 Restoration (Will), 188 Revolutionary War, 16, 27–28, 73, 76, 82, 87, 89 Rhode Island, 7, 13, 35, 124 Rights of Man, The (Paine), 147 Riot, Risings and Revolution (Gilmour), 33 Rockwell, Norman, 131 Roe v. Wade, 9, 164–165 Rome, 130 Roosevelt, Franklin D., 5, 159, 161, 169, 224 Roosevelt, Theodore, 85, 97, 159, 186 Root, Elihu, 97, 113 rotation in office, 46, 54, 90– 91, 92, 168–169 Rousseau, Jean-Jacques, 29, 81, 143, 144, 146–147, 178, 185

i n d e x 242

Rush, Benjamin, 66 Rutledge, John, 36, 37, 212 Schlesinger, Arthur, Jr., 97 Schwarzenegger, Arnold, 124 second chambers, 48, 211 Senate/senators, 37, 43, 113–114; elections, 44–45, 78, 108–114, 181–182, 183, 219; powers, 44, 46–48; terms, 45–46 “sensible democracy,” 178 separation of powers, 2–3, 42–43, 138, 145, 187–188, 202 Shays, Daniel/Shays’ Rebellion, 34, 37, 57–58 Sherman, Roger, 31, 35, 40, 50, 54, 56, 59, 168–169 simple-plurality electoral system, 11, 182, 197, 224 slavery/slaves, 17, 18, 20, 21, 31, 37, 64, 72, 101, 103, 140, 204, 212 Smith, Elias, 82, 128 “Soccer Moms,” 26 Socrates, 70, 150 sortition, 186 South Carolina, 13, 19, 42, 108 Standard Oil Co. of New Jersey et al. v. United States, 164 state governments/legislatures, 90, 109–111, 112–113, 119, 122, 125, 173–175; at constitutional convention, 24–26, 32, 34–36, 42, 45, 50–51, 52, 119, 221 Stealth Democracy (Hibbing and Theiss-Morse), 190 Story, Joseph, 96 Strong Democracy (Barber), 226 suffrage. See franchise Switzerland, 186, 202, 214–215, 218 tea party movement, 152 tectonic plates, 2, 7, 13, 15, 68, 71, 129, 132, 153, 157, 161, 176, 177, 200, 202, 203–204 term limits, 5– 6, 90– 91, 128, 168–173, 188, 198–199

terms of office, short, 89– 90, 122 Thatcher, Margaret, 6 Theiss-Morse, Elizabeth, 190–194 Tocqueville, Alexis de, 2, 74– 75, 83, 88, 93, 95, 118, 164 town meetings, 87, 148–150, 186 treaties, ratification of, 47–48, 108–109 Truman, Harry S., 173 two-stage elections (“mediation”), 106–107, 108–110 United Kingdom. See Britain United States of Anger, The (Esler), 206 U.S. Army, 115 U.S. political system, Americans’ views of, 67– 68, 179–180, 190–191 Voting Rights Act (1965), 104 War of Independence. See Revolutionary War “war referendum,” 159 Warren, Francis, 113–114 warring gods, 131, 152 Washington, George, 5, 23, 34, 42, 57, 63, 66, 96, 131, 169, 212–213 What Americans Know about Politics and Why It Matters (Delli Carpini and Keeter), 179 Whig Party, 84 Will, George F., 188–189, 190–191 Williamson, Hugh, 53, 139 Wilson, James, 33, 40, 41, 43, 45, 48, 49, 51–52, 54, 59, 119, 168–169, 209 Wilson, Woodrow, 66, 85, 159 women, extension of franchise. See franchise Wood, Gordon S., 73 World War I, 115, 116, 123, 126, 159, 226 World War II, 6, 8, 123, 126, 128, 155, 158, 159, 168, 169, 170, 173, 179, 197, 218, 226 Wright, Jim, 174